UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


HANDBOOK 

ON 

ELECTION  LAWS 


BY 

JAMES    HAMILTON    LEWIS 

Former    Corporation    Counsel    of   the    Citij    of   Chicago. 

President   of   the   Webster  Collerje   of   Law. 

Member   of   the   Chieaijo   Bar. 

AND 

ALBERT    H.    PUTNEY 

Author  of  ■■United  State.s  Constitutional  History  and  Law, 

■'Oorernment  in    the   United   states/'   etc. 

Member  of  the  Chieayo  liar. 


CHICAGO 

ILLINOIS   BOOK    EXCHANGE 
1912 


T 


Copyright,  1912 
ILLINOIS  BOOK   EXCHANGE 


TABLE  OF  CONTENTS 


Special  Prefatory  Introduction  by  the  Authors.  .  9 

Historical  Introduction 15 

Chapter  T.     The  Eight  to  Vote 25 

Section     1.     Not  a  Universal  Right 25 

Section     2.     Determination  of  the  Right  to  Vote  in 

the  United  States 27 

Section     3.     Remedies  in  Cases  of  the  Deprivation  of 

the  Eight  to  Vote 30 

Chapter  II.    Qualifications  of  Voters 35 

Section     4.     Limitations   on   the   Power    of    a   State 
Legislature  to  Impose  Restrictions  on 

the  Eight  of  Suffrage 35 

Section     5.     Age  Qualifications  36 

Section     6.     Educational  Qualitieations  37 

Section     7,     Eeligious  Qualifications    38 

Section     8.     Property  Qualifications 39 

Section     9.     Sex  Qualifications    40 

Section  10.     Citizenship  Qualifications 42 

Section  11.     Eesidenee  Qualifications 43 

Section  12.     Special  Disqualifications 51 

Chapter  III.    Registration  56 

Section  13.     Constitutional  Provisions  as  to  Registra- 
tion      56 

3 


4  CONTENTS 

Section  14.  Power  of  State  Legislatures  over  Regis- 
tration     57 

Section   1").     General      Apijlieatioii      of      lie^islration 

Laws.    Exceptions 60 

Section  16.     Registration  Officials 62 

Chapter  TY.     Political  Parties 63 

Section  17.     Party  Organization  and  Party  Names..  63 

Section  18.     Political  Committees  64 

Section  19.     Political  Conventions   67 

Section  I'O.     Control    of    the    Courts    Over    Political 

( 'on^  ent  ions    71 

Chapter  Y.     Primary  Election-  Laws 74 

Section  I'l.     General  Right  to  Pass  Priniarv   Kicction 

Laws   74 

Section  2'2.  Cases  Where  Particular  Primary  Elec- 
tion Laws  Have  Been  Declared  Con- 
stitutional      75 

Section  23.  Cases  Where  Particular  Primary  Elcc- 
lion  Laws  Have  Been  Declared  Un- 
constitutional      78 

Ch.\pter  VT.     CoxDrcT  of  Election's 82 

Section  24.     Calling  Elections  82 

Section  25.     Election  Officers 84 

Section  26.     Time  of  Holding  Elections 86 

Section  27.     Place  of  Holding  Elections 87 

Section  28.     Yoting     89 

Chapter  YII.     Australian  Ballot  System 91 

Section  29.  History  of  the  Australian  Ballot  Sys- 
tem    91 


CONTENTS  5 

Section  30.     General  Characteristics  of  the  Australian 

Ballot   System    9;5 

Section  31.     Form  of  the  Australian  Ballot 94 

Section  32.     Constitutionality    of    Australian    Ballot 

System 100 

Section  33.     Effect    of    Irregularities    in    Preparing 

Official   Ballot   Upon   the   Validity   of 

Vote  Cast    104 

Section  34.     Form  of  the  Cross 108 

Section  35.     Validity    of    Vote    as    Depen<ling    C^pon 

Place  of  Mark  for  Candidate 112 

Section  3G.     Distinguishing  Marks   llo 

Section  37.     Marking  a   Straight  Ballot   and   a   Split 

Ballot    119 

Section  38.     Number  of  Times  Name  of  a  Candidate 

May  Appear  on  the  Ballot 120 

Section  39.     Writing  in  Additional  Names  on  Ballot  123 

Chapter  VIII.     Voting  Machines 133 

Section  40.     In  General    133 

Section  41.  Constitutionality  of  Laws  Providing  for 
the  Use  of  Voting  ^lachines  in  Elec- 
tions    134 

Chapter  IX.     Counting,  Returning  and  Canvassing 

Votes    140 

Section  42.     Counting  the  Votes 140 

Section  43.     Recounts    143 

Section  44.     Returns    144 

Section  45.     Canvassing  Returns  145 

Chapter  X.     Election  Contests 152 

Section  46.  Natur.  of  Proceedings  to  Contest  Elec- 
tion      152 


CONTENTS 


Section  47.     Quo   Warranto    170 

Section  48.     Mandamus 175 

Section  49.  Eight  of  Private  Person  to  Enforce 
Public    Rights    or    Duty    Relative    to 

Elections  by  Writ  of  Mandamus 184 

Section  50.     Certiorari   186 

Section  51.     Prohibition    187 

Section  52.     Injunctions   188 

Section  53.  Right  of  Contestant  for  Office  to  Enjoin 
Incumbent    from    Performing    Public 

Duties  Pending  Election  Contest....  193 

Section  54.     Contests  Before  Legislative  Bodies 196 

Section  55.     Grounds  for  Election  Contests 198 

Section  56.  Effect  of  Irregularity  or  Fraud  in 
Nomination  of  Candidate  Upon  the 
Validity  of  the  Election 206 

Section  57.  Pleading  and  Evidence  in  Election  Con- 
tests       209 

Section  58.  Waiver  of  Right  to  Contest  the  Legal- 
ity of  an  Election  by  Participating 
Therein    216 

Chapter  XL     CRi.Mf:s  Kelatixg  to  Elections 220 

Section  59.     Frauil   in  Registration 220 

Section  60.     Illegal   Voting    224 

Section  61.     Bribery    227 

Section  62.     Offenses  by  Election  Officers 230 

Section  63.  Minor  Offenses  Relating  to  Elections.  .  .  232 

Section  64.     At    What    Elections    Offenses    May    Be 

Committed   233 

Section  65.     Federal  Statutes  as  to  Crimes  Relating 

to  Elections   233 


CO  JN  TENTS  7 

Chapter  XII.     Federal  Elections 238 

Section  66.     Election  of  Federal  Officers 238 

Section  67.     Contested  Congressional  Elections 242 

Section  68.     Presidential  Elections 245 

Table  op  Cases .■ 259 

Index    273 


SPECIAL  PREFATORY  INTRODUC- 
TION. 

By  general  consent,  in  this  country  elec- 
tions have  been  regarded  as  the  incidental 
engagement  of  mankind.  The  general  man- 
kind engaged  in  various  occupations  of 
commerce  have  either  ignored  elections  or 
regarded  them  as  objects  which  intruded 
upon  the  time  or  financial  opportunity  of 
the  citizen.  This  particular  citizen  would 
have  curtailed  the  elections  to  as  few  as 
possible,  while  others  would  have  avoided 
elections  by  making  all  offices  appointive, 
and  of  this  latter  individual  we  will  not  fail 
to  observe  the  utter  absence  on  his  part  of 
any  reflection  or  conclusion  as  to  how  that 
particular  citizen  was  to  be  named  who  was 
to  make  these  appointments.  It  is  interesting 
to  note  that  those  who  have  engaged  in 
elections  are  those  who  have  had  the  least 
to  gain  from  them  and  who  in  the  end 
suffered  the  most  as  a  result  of  them.  We 
mean  the  individual  engaged  in  humble  occu- 
pation. He  was  active  in  elections ;  he  sel- 
dom knew  anything  about  the  principles  of 

9 


10  ELECTION  LAWS 

government;  he  only  knew  some  immediate 
wrong  which  was  around  him  and  which  he 
felt  touched  him ;  or  he  knew  some  immediate 
right  which  had  been  denied  him  to  which 
he  was  entitled,  as  had  been  taught  him  by 
the  press  or  the  public  orators,  or  by  the 
comments  and  protests  of  his  neighbors. 
When  the  election  was  on,  this  active  indi- 
vidual voted  for  something  which  benefited 
everyone  else  but  himself.  Or,  in  the  heat 
of  campaign,  or  induced  by  others  who  were 
not  interested  in  his  welfare,  he  voted  some- 
thing out,  of  which  he  was  really  the  bene- 
ficiary, and  did  not  know  it  until  it  was  lost. 
Through  all  of  this  the  method  of  elections 
was  lost  sight  of.  If  ever  there  was  a  system 
in  free  government  that  personified  in  its 
practice  the  meaning  of  the  old  adage  of  the 
"end  justifying  the  means"  it  is  elections. 
Those  who  won  were  content  to  rest  there ; — 
they  drew  their  consolations  from  the  philos- 
ophy that  the  result  obtained  justified  every 
measure  adopted  in  the  process.  Those  who 
were  defeated  reversed  the  theory,  their 
doctrine  being  that  the  very  end  obtained 
showed  the  means  resorted  to  were  unneces- 
sary, unlawful  or  unwise.  The  intelligence 
of  the  community,  except  upon  election  day, 
seldom  directs  itself  to  elections  at  all.    Then 


SPECIAL  INTRODUCTION  H 

it  directs  itself  to  the  mere  manner  in  which 
it  casts  its  vote  of  assertion  or  vote  of  pro- 
test. The  method  of  securing  the  proper 
voter,  or  of  assuring  that  the  voter  who  did 
vote  was  a  proper  person  within  the  meaning 
of  the  law,  was  always  overlooked;  indeed 
seldom  thought  about.  The  method  of  having 
the  vote  counted  when  properly  cast  was  an 
action  reflected  upon,  but  that  merely  from 
a  degree  of  personal  pride  or  personal  vindi- 
cation of  each  particular  voter  to  vanquish 
his  opponent  and  his  desire  to  have  his  vote 
registered  to  accomplish  that  end.  The  great 
fundamental  questions  of  liberty,  the  orderly 
procedure  of  government,  the  security  of 
citizenship,  all  involving  a  proper  procedure 
of  elections  and  one  which  engaged  the  atten- 
tion and  held  the  confidence  of  the  citizen, 
were  as  unknown  as  they  were  unthought  of 
by  the  ordinary  voter. 

Let  it  be  frankly  admitted,  the  judges  of 
the  courts  have  known  little  of  the  election 
laws,  and  only  when  a  question  was  brought 
before  them  was  investigation  made  or 
information  obtained.  Then  the  field  would 
be  new  and  the  judge  would  be  as  an  experi- 
menter. While  he  would  have  resented  the 
intimation  that  he  did  not  know  the  funda- 
mental constitution,  the  decisions  construing 


12  ELECT  rOX  EAWS 

the  law  as  based  upon  it,  and  the  decisions 
demonstrating  their  meaning, — he  would 
have  been  perfectly  willing  to  admit  that  the 
exception  to  this  general  information  related 
to  the  very  organization  which  was  necessary 
as  a  thing  of  life  before  any  of  the  others  of 
which  he  did  know  could  exist  in  security  or 
in  respect.  The  ordinary  lawyer  knew  little 
of  election  laws  unless  he  had  been  partici- 
pating in  politics.  And  the  general  citizen 
who  fancied  he  knew  his  rights  as  a  man, 
not  only  did  not  know  his  rights  as  a  political 
citizen  and  officer  of  government  and  as  an 
apostle  of  liberty,  but  he  made  no  effort  to 
obtain  the  knowledge  and  in  the  nine  out  of 
ten  times  was  either  juggled  from  these 
rights  by  the  instrumentalities  or  agencies 
which  would  profit  ])y  such  procedure,  or 
when  not  juggled,  had  his  rights  taken  from 
him  by  the  indirect  method  of  ignorance  or 
indifference. 

In  States  such  as  Illinois,  where  the  Aus- 
tralian system  of  elections,  with  appropriate 
modifications,  had  been  ado])ted  and  are  now 
in  vogue,  conjoined  to  a  primary  system,  it 
was  thought  wise  by  the  authors  of  this  work 
to  present  in  a  concise  form  the  general  law 
of  elections,  and  present  such  in  a  manner 
as  would  be  agreeable  to  the  student  of  gov- 


SPECIAL  INTKODUCTION  13 

ernmeiit,  acceptable  to  the  advocate  of  the 
Bar,  advisory  to  the  judge  on  the  bench,  and 
informing  to  the  citizen  at  large.  Late  events 
occurring  in  the  State  of  Illinois,  and  in  our 
neighboring  States,  indeed,  have  clearly  dem- 
onstrated that  the  absence  of  such  a  book,  of 
such  a  source  of  information,  can  be  charged 
as  the  responsibility  for  ignorance  inex- 
cusable, conduct  unpardonable  and  offenses 
unjustified,  which  have  all  transpired  and 
been  committed  at  every  election  within  the 
last  ten  years  and  in  the  memory  of  the  pres- 
ent citizen  who  is  living  through  that  decade. 
Few  books  have  been  written  upon  elections, 
as  writers  of  law  books  were  more  given  to 
write  upon  subjects  which  were  in  general 
demand. 

We  have  referred  to  the  limited  sphere  in 
which  elections  were  considered  at  all  as  gov- 
ernmental agencies.  This  limited  sphere  no 
doubt  restrained  the  inclination  of  writers 
upon  the  subject  of  elections.  It  may  be  that 
the  fact  of  elections  under  the  guidance  of  the 
law  having  of  late  received  sanction  as  a 
sovereign  thing  has,  because  of  the  slow  prog- 
ress, retarded  the  stimulus  which  otherwise 
would  have  attracted  the  subjects  of  govern- 
ment to  the  student. 

This  book  is  now  tendered  to  thx)se  who 


14  ELECTION  LAWS 

may  be  interested  in  the  subjects,  particu- 
larly to  the  profession  of  the  law,  with  no 
pretense  that  it  offers  any  philosophy,  that 
it  tenders  anything  novel,  or  that  it  inducts 
any  doctrine  of  government.  It  is  offered  as 
something  of  a  guide, — perhaps  as  an  index — 
to  the  general  rules  applicable  to  the  conduct 
of  elections,  that  the  same  may  serve  as 
some  direction  and  some  aid  to  those  who 
may  have  occasion  to  look  to  the  law  of  elec- 
tions for  information,  or  the  method  of  pre- 
scribed procedure  as  guidance.  It  is  to  be 
earnestly  hoped  that,  as  the  law  of  elections 
may  widen  and  develop,  our  citizenship  may 
take  more  heed  and  more  interest  in  their 
growth  and  in  their  meaning.  At  present 
this  book  is  tendered  with  the  trust  that  it 
may  contribute  in  some  small  part  to  what  in 
future  will  be  a  larger  field  and  one  of 
greater  philosophy  and  learning  than  this 
little  effort  is  intended  to  suggest. 

If  it  shall  lighten  the  labor  of  the  Bar,  be 
of  some  information  to  the  courts  and  any 
source  of  instruction  to  the  citizen,  the  writ- 
ers will  have  been  compensated. 

Jas.  Hamilton  Lewis. 

Chicago,  July,  1912. 


HISTORICAL  INTRODUCTION 

The  history  of  election  laws  constitutes  one 
of  the  most  interesting  chapters  in  legal  his- 
tory. The  origin  and  evolution  of  elections 
is  throughout  closely  connected  with  the  crea- 
tion and  development  of  free  political  insti- 
tutions. The  existence  or  non-existence  of 
elections,  together  with  the  character  of  the 
elections  if  they  do  exist,  furnish  a  clue  to  the 
general  character  of  the  laws  of  any  country 
or  period. 

In  the  earliest  age  in  the  history  of  nearly 
every  race  the  existence  of  rude  elections 
in  the  popular  assemblies,  is  to  be  seen.  The 
greatest  development  in  this  field  in  ancient 
times  was  reached  in  some  of  the  city  repub- 
lics of  Greece,  and  more  especially  in  the 
Roman  Republic.  The  establishment  of  the 
Roman  Empire,  and  later  of  the  Feudal  Sys- 
tem, almost  eradicated  popular  elections  as 
an  element  in  national  government. 

''Elections  seem  to  have  originated  in  the 
general  assemblies  of  citizens  (or  perhaps 
in  the  old  labor-gilds),  as  in  the  Roman  con- 
cilia, the  Athenian  ecclesia  or  the  Teutonic 

15 


16  KI.KCTION   l.AWH 

assemblages  of  freemen.  When  they  passed 
away,  first  in  fact  and  then  in  form,  in  the 
growth  of  despotism  and  autocracy,  the  cus- 
tom of  election  was  preserved  in  the  monastic 
fraternities,  ecclesiastical  conventions,  free 
cities,  and  trade-gilds.  Favored  electors,  as 
in  Germany,  often  elected  emperors  or  even 
kings."  (The  Encyclopedia  of  Social  Re- 
form, page  438.) 

The  re-establishment  of  popular  elections 
as  the  controlling  power  in  government  was 
the  work  of  the  Anglo-Saxon  race.  Popular 
elections  seem  to  have  been  well  known  to 
the  Anglo-Saxons,  even  in  their  continental 
homes,  and  were  not  forgotten  by  them  after 
their  invasion  and  conquest  of  Britain.  The 
old  Dux  was  an  elective  office.  The  later  de- 
veloped Kingship  was  theoretically,  and  to  a 
certain  extent  also  actually,  elective.  The 
higher  ecclesiastical  officials,  the  bishops  and 
the  abbots,  were  elected  by  the  clergy.  The 
principle  of  representation  w^as  to  be  found 
in  the  reeve  and  four  men  from  each  township 
who  attended  the  county  and  hundred  courts, 
as  the  representatives  of  such  township.  The 
development  of  the  system  of  representative 
government,  therefore,  in  England  during 
the  thirteenth  and  fourteenth  centuries  was 
no  radical  departure,  but  merely  a  new  ap- 


HISTORICAL  INTRODUCTION  17 

plication  of  principles  with  which  the  Eng- 
lishmen of  that  period  were  already  familiar. 

Neither  the  elective  nor  the  representative 
principle,  however,  had  had  any  place  in  the 
legislative  branch  of  the  English  Govern- 
ment dnring  the  early  Norman  period.  The 
Curia  Regis  of  the  Norman  English  Kings, 
the  nearest  approach  to  a  legislative  body  in 
England  for  the  period  after  Senlac,  was  a 
court  of  the  King's  feudal  vassals,  a  body 
whose  powers  and  duties  were  of  a  mixed 
legislative,  executive  and  judicial  nature.  In 
theory,  at  least,  every  tenant-in-chief  of  the 
King  by  military  service,  had  a  personal 
right  to  be  summoned  to  this  council ;  cer- 
tainly when  the  King  was  to  impose  any  ex- 
traordinary aid,  and  probably  also  on  other 
occasions. 

The  tirst  national  council  or  parliament 
wliicli  was  in  any  sense  a  representative  l)ody 
was  that  held  at  St.  Albans  on  August  4th, 
1213,  where  the  royal  demesnes  were  each 
represented  by  the  reeve  and  four  men.  The 
lesser  barons,  i.  e.,  lesser  tenants-in-chief, 
about  this  time  began  to  lose  their  theoretical 
right  to  attend  the  National  Council ;  at  the 
same  time  they,  in  common  with  the  other 
freeholders,  began  to  acquire  the  right  to 
elect  representatives  to  the  National  Council, 


18  ELECTION  LAWS 

Four  Kiiigiits  of  the  Shire  were  summoned 
by  King  John  to  the  National  Council  in 
1215.  Two  Knights  from  each  shire  at- 
tended the  National  Council  in  1254;  these 
were  chosen  by  the  freeholders  of  the  Shire  in 
their  county  court,  the  semi-popular,  semi- 
representative  assembly  of  the  county. 

A  rapid  development  of  representative  gov- 
ernment took  place  during  the  Barons'  war. 
In  1261  there  were  two  rival  summons  to  a 
National  Council ;  the  one  by  the  Barons  sum- 
moning three  Knights  from  each  county  to 
meet  at  St.  Albans,  and  the  other  l)y  the  King 
for  a  similar  representation  in  his  Council  to 
be  held  at  Windsor.  In  Simon  de  Montfort's 
Parliament  the  counties  were  represented  by 
four  Knights  each.  The  final  step  was  taken 
by  Simon  de  Montfort  in  the  year  1265 
when,  in  addition  to  the  Knights  of  the  Shires, 
he  summoned  to  the  Parliament  two  citizens 
from  each  city  or  borough.  This  was  the  first 
Parliament  in  which  all  classes  of  the  people 
were  represented ;  the  first  truly  national 
representative  assembly  in  the  history  of  the 
world.  The  overthrow  of  Simon  de  Montfort 
a  few  weeks  later  put  a  check  to  this  work. 
The  representation  of  the  cities  and  even  of 
the  Knights  of  the  Shire  during  tlie  next 
thirty  years  was  irregular  and  uncertain,  and 


HISTOKICAL  INTRODUCTION  19 

it  is  only  from  the  latter  year  that  we  can 
date  the  regular  and  complete  establishment 
of  a  perfect  representation  of  the  three  es- 
tates in  Parliament.  From  1295,  however, 
all  the  constitutent  elements  of  Parliament 
became  established.  With  the  exception  that 
the  representations  of  the  lesser  clergy  drop 
out  in  the  fourteenth  century  and  the  abbots 
in  the  sixteenth  there  was  little  change  in  the 
constitution  of  Parliament  from  the  Parlia- 
ment held  by  Edward  I,  in  1295,  to  the  one 
which  passed  the  great  reform  bill  in  1832. 
The  Anglo-Saxons'  greatest  contribution  to 
the  world's  political  progress  consists  in  this 
invention  and  development  of  representative 
legislative  assemblies.  The  lack  of  such  in- 
stitutions in  earlier  times  rendered  free  gov- 
ernment impractical,  except  in  mere  city 
states.  It  was  largely  this  defect  which 
caused  the  fall  of  the  Roman  Republic.  The 
Roman  legislative  assemblies,  the  comita 
curiata,  the  comita  centuriata,  the  comita 
tributa,  were  all  primary  assemblies.  All 
Roman  citizens  voted  in  such  assemblies.  Such 
a  system,  which  could  succeed  when  Rome 
was  a  city  republic  on  the  Tiber,  became  in- 
adequate with  the  extended  area  of  her  later 
days.  Legislation  by  primary  popular  as- 
semblies was  no  longer  possible,  and  repre- 


20  ELECTION  LAWS 

sentative  legislative  assemblies  had  not  yet 
appeared.  There  remained  nothing  but  the 
Empire. 

Government  by  the  people  now  having  been 
rendered  practical,  the  question  of  the  man- 
ner in  which  elections  should  be  conducted 
became  of  the  greatest  imi)ortance.  The 
pioneer  work  in  this  legal  fiekl  was  also  to 
be  performed  by  members  of  the  same  Anglo- 
Saxon  race,  but  the  honors  were  destined  to 
l)e  won  neither  by  England  herself  nor  by  our 
own  country,  but  by  England's  great  colony 
of  the  southern  hemisphere.  It  was,  in  fact, 
several  centuries  after  the  establishment  of 
representative  legislative  assemblies  before 
any  real  progress  was  made  in  the  method  of 
conducting  elections. 

For  a  long  period  in  F]ngland,  members  of 
Parliament  were  elected  by  a  show  of  hands. 
There  is  no  record  of  any  poll  ever  being 
taken  until  after  the  passage  of  the  statute 
of  8  Henry  VI  (1429)  and  even  as  late  as  the 
sixteenth  century  a  show  of  hands  was  con- 
sidered as  a  legal  method  of  determining  an 
election.  The  right  to  demand  a  poll  was 
only  fully  established  by  statute  of  7  and  8 
William  *III  (1696).  After  the  polling  of 
voters  had  been  finally  adopted,  the  method 
of  taking  the  votes  rem&iued  crude  and  ob' 


HISTOEICAL  INTRODUCTION  21 

jectionable  for  a  long  period.  The  voter  was 
compelled  to  orally  state  for  whom  he  wished 
to  vote.  The  polls  were  often  kept  open 
for  several  days;  in  one  election  in  Mayo 
County  it  is  recorded  that  the  polls  were  open 
for  fifty-seven  days. 

The  next  step  in  advance  consisted  in  the 
introduction  of  the  ballot.  To  the  Anglo- 
Saxon  belongs  the  honor,  not  of  first  intro- 
ducing the  ballot,  but  of  first  making  it  of 
practical  value.  Ballots  are  found  in  use 
even  in  the  republics  existing  before  Christ, 
and  the  Gabinian  law  of  139  B.  C.  contains 
very  elaborate  provisions  for  the  use  of 
ballots  in  elections.  All  early  methods  of 
voting  by  ballot  lacked  those  modern  fea- 
tures from  which  the  superiority  of  this  form 
of  voting  is  mainly  derived. 

America  was  greatly  ahead  of  England 
in  the  adoption  of  the  use  of  ballots.  In 
many  portions  of  the  country  ballots  were 
used  even  in  colonial  times,  and  most  of  the 
States  uniformly  used  this  system  after  the 
Declaration  of  Independence.  The  viva  voce 
system  of  voting  continued  the  longest  in 
some  of  the  Southern  States,  especially  in 
Kentucky, 

"In  Great  Britain  it  (i.  e.  the  use  of  the 
ballot)  was  not  only  fought  by  the  privileged 


22  i:LECTJOX  LAWS 

classes  as  overthrowing  their  leadership  of 
the  tenants  and  artisans,  but  by  a  large  part 
even  of  the  Liberals  as  undermining  the  man- 
liness of  the  English  character.  The  van- 
guard of  the  movement  were  the  Benthamites 
and  it  stood  foremost  in  the  ])rogramme  of  re- 
form put  forward  by  the  more  radical  Whigs 
early  in  the  nineteenth  century.  It  was  in 
the  first  draft  of  the  Reform  Bill  of  1832 ;  in 
1833  Grote  the  historian  introduced  it,  and 
repeated  the  attempt  every  year  till  1839  with 
a  fresh  speech  of  immense  force  and  learning. 
It  was  supported  by  Macaulay  with  his  usual 
effectiveness,  but  was  sneered  at  by  so  good 
a  Lil)eral  as  Sydney  Smith,  and  heartily  suj^- 
ported  by  none  but  the  Chartists  whose  sup- 
l^ort  alone  would  have  killed  it.  They  made 
it  one  of  their  'six  points'  of  their  'Peoj^le's 
Charter.'  In  1851  it  was  carried  in  the  Com- 
mons bj"  51  majority  against  Lord  John  Rus- 
sell and  his  Liberal  government,  but  went  no 
further.  In  1869  it  was  tried  at  Manchester 
as  a  test,  and  worked  well;  was  adopted  at 
school-board  elections  in  1870;  and  the  same 
year  a  select  committee  of  the  House,  headed 
by  Lord  Hartington,  reported  in  its  favor  as 
a  means  of  lessening  corruption,  'treating' 
and  intimidation.  In  1872  Mr.  W.  E.  For- 
ster's  ballot  act  made  printed  ballots  com- 


HISTOEICAL  INTKODUCTION  23 

pulsory  at  all  national  and  municipal  elec- 
tions except  those  of  university  candidates 
for  Parliament,  This  put  an  end  to  the 
drunken  riots  attending  the  previous  public 
nominations  at  the  hustings,  so  keenly  satir- 
ized by  Dickens  and  others."  (Americana 
Vol.  li.) 

The  mere  use  of  a  printed  ballot  did  very 
little  by  itself  to  eliminate  the  existing  elec- 
tion evils.  Where  the  different  political  par- 
ties printed  their  own  ballots,  there  was  little, 
or  no,  greater  secrecy  in  voting  than  under 
the  viva  voce  system,  and  the  same  oppor- 
tunities for  the  intimidation  of  voters  still 
existed.  In  addition  the  use  of  ballots  intro- 
duced new  methods  of  fraud,  impossible 
under  the  viva  voce  voting,  such  as  "stuff- 
ing" the  ballot  box  and  repeating. 

The  great  advance  towards  fair  elections 
was  that  made  by  the  introduction  of  the  Aus- 
tralian ballot  system,  the  history  and  pur- 
poses of  which  are  discussed  in  the  body  of 
this  book.  A  still  more  recently  developed 
method  of  voting  is  that  by  voting  machines, 
which  is  still  in  an  embryonic  stage. 

The  great  innovation  which  this  country 
has  produced  in  the  field  of  political  methods 
has  been  the  party  nominating  convention. 
This  institution,  so  long  the  central  feature 


24  ELECTION   LAWS 

in  American  politics,  is  now  being  rapidly 
relegated  to  the  past  by  the  new  system  of 
primary  nominations. 

The  introduction  of  tlie  Australian  ballot, 
of  primary  nominations  and  of  the  initiative 
and  referendum,  has  so  entirely  revolution- 
ized American  political  conditions  during  the 
past  quarter  of  a  century,  that  the  American 
elections  and  election  laws  with  which  the 
last  generation  was  familiar  bear  almost  no 
resemblance  to  those  of  today.  It  seems 
probable  that  the  most  enduring  work  which 
the  present  generation  will  accomplish  in  the 
field  of  jurisprudence  is  the  reform  of  the 
election  laws. 


CHAPTER  I 
THE  RIGHT  TO  VOTE 

Section  1.     Not  a  Universal  Right 

The  right  to  vote  is  not  one  of  tliose  rights 
known  as  "natural  rights."^  The  right  to 
vote,  and  voting  itself,  can  only  begin  to  exist 
after  men  have  organized  themselves  into 
society,  and  created  government,  and  the 
right  to  vote  must  be  determined  by  the  rules 
of  the  government  thus  created.  The  quali- 
tied  voters  of  a  State,  at  any  time,  have  the 
right  to  decide  what  shall  constitute  any  in- 
habitant of  the  State  a  qualified  voter,  and 
may  grant,  or  withhold,  the  right  of  suffrage 
at  pleasure. - 

The  extent  and  the  character  of  the  restric- 
tions placed  upon  the  right  to  exercise  the 
elective  franchise  have  varied  greatly  in  dif- 
ferent localities  and  at  different  times ;  the 
modern  tendency  being  towards  greater  and 
greater  liberality  in  this  respect.  It  has  never 
been  proposed,  however,  nor  could  it  ever  be 
practical,  to  give  the  ballot  to  every  member 
of  a  country  or  community.  Certain  classes 
25 


26  ELECTION  LAWS 

in  the  community,  at  the  very  least,  insane 
persons  and  children,  must  be  excluded  from 
this  privilege,  for  the  protection  of  all  classes 
in  the  community,  including  themselves. 

The  right  to  vote  is  not  a  vested  right.  A 
law,  properly  passed,  taking  away  this  right 
from  persons  who  had  previously  possessed 
it  would  be  valid. 

Certain  classes  in  a  State  may  be  given  a 
partial  right  of  suffrage.  At  an  early  period 
in  this  country  it  was  customary  to  have  a 
graduated  system  of  qualifications  for  elec- 
tors for  different  officials.  This  condition 
caused  the  peculiar  wording  of  that  clause 
in  the  Federal  Constitution  which  provides 
that:  ''The  House  of  Eepresentatives  shall 
be  composed  of  members  chosen  every  second 
year  by  the  people  of  the  several  States,  and 
the  electors  in  each  State  shall  have  the  quali- 
fications requisite  for  electors  of  the  most 
numerous  branch  of  the  State  Legislature.^ ^^ 

Illustrations  of  the  limited  suffrage  of  this 
character  are  to  be  found  at  the  present  time 
in  the  laws  of  a  number  of  the  States  per- 
mitting women  to  vote  in  school  elections 
only,  or  in  municipal  elections  only. 

Notes 
1.     Spencer  vs.  Board  oi  Kegistration,   1 


THE  EIGHT  TO  VOTE  27 

MacArthur  169,  29  Am.  Rep.  582;  Anderson 
vs.  Baker,  23  Md.  531. 

2.  Blair  vs.  Ridgely,  41  Mo.  63,  97  Am. 
Dec.  248. 

3.  United  States  Constitution,  Article  I, 
Section  2,  Clause  1. 

Section  2.    Determination  of  the  Right  to  Vote  in 
the  United  States 

The  right  to  determine  as  to  the  qualifica- 
tions for  voting,  both  as  to  National,  State 
and  local  elections,  belongs  to  the  Legisla- 
tures of  the  several  States. 

The  only  two  classes  of  Federal  officials 
who  are  (or  may  be)  elected  by  popular  vote 
are  Presidential  Electors  and  Representa- 
tives in  Congress. 

The  Constitution  of  the  United  States  pro- 
vides that  each  State  shall  elect  as  many 
Presidential  Electors  as  it  has  Senators  and 
Representatives  in  Congress,  and  that  such 
electors  shall  be  appointed  in  each  State  in 
such  manner  as  the  Legislature  of  the  State 
shall  determine.^ 

In  the  early  years  of  the  Republic  these 
electors  were  chosen  in  the  different  States  in 
three  different  ways:  (1)  directly  by  the 
State  Legislature;  (2)  b}^  popular  vote,  the 
voters  voting  by  districts;   (3)   by  popular 


28  ELECTION   LAWS 

vole,  the  voters  throughout  the  State  voting 
on  a  general  l)a]lot  for  tlie  full  number  of 
electors  to  which  the  State  was  entitled. 
Since  1832  all  the  States  at  every  election 
have  chosen  their  electors  by  the  third 
method,  with  the  exceptions  of  South  Caro- 
lina, where  the  Presidential  Electors  were 
chosen  directly  by  the  State  Legislature  until 
after  the  close  of  the  Civil  War,  and  Michi- 
gan, where  the  electors  were  chosen  by  dis- 
tricts in  the  single  election  of  1892.  The  con- 
stitutionality of  the  law  of  Michigan  provid- 
ing for  this  method  of  choosing  electors  was 
upheld  by  the  Supreme  Court  of  the  United 
States.-  Any  State  Legislature  has  the  un- 
doubted power,  at  any  presidential  election, 
to  choose  the  Presidential  Electors,  and  en- 
tirely abolish  any  popular  vote  on  this  point. 
The  Federal  Constitution  originally  gave 
to  the  States  an  unlimited  discretionary 
power  over  the  qualifications  of  voters  for 
members  of  the  National  House  of  Represen- 
tatives.^ Limitations  upon  this  power  were 
imposed  for  the  first  time  by  the  Fifteenth 
Amendment  to  the  Constitution,  which  pro- 
vides that:  "The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color  or  previous 


THE  EIGHT  TO  VOTE  29 

condition  of  servitude. ' '  Any  other  condition 
may  be  imposed  by  any  State  Legislature 
upon  voting  either  for  members  of  Congress 
or  for  State  officials,  with  the  possible  excep- 
tion that  a  State  statute,  too  greatly  restrict- 
ing the  right  of  suffrage,  might  be  held  to  be 
in  violation  of  the  clause  in  the  Federal  Con- 
stitution which  provides  that:  "The  United 
States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government."^ 
Particular  qualifications  for  voting  are  dis- 
cussed in  Chapter  II. 

The  legislative  assemblies  of  the  Terri- 
tories have  had,  in  the  past,  the  authority  to 
regulate  the  right  of  voting,  subject  to  the 
restrictions  and  limitations  imposed  by  the 
Federal  Constitution  and  the  Acts  of  Con- 
gress.^ This  power  belongs  primarily  to  Con- 
gress, and  has  only  been  delegated  by  them  to 
the  Territorial  Legislatures.  The  right  to 
vote  in  the  colonies  of  the  United  States  is 
mainly  regulated  directly  by  Congressional 
legislation.^ 

Notes 

1.  United  States  Constitution,  Article  IT, 
Section  1,  Clause  2. 

3.  United  States  Constitution,  Article  I, 
Section  2,  Clause  L  Also  see  Section  1  of  this 
book. 


30  ELECTION  LAWS 

4.  United  States  Constitution,  Article  IV, 
Section  4. 

5.  Inuis  vs.  Bolton,  2  Idaho  407,  17  Pac. 
264. 

6.  E.  g.  Act  of  Congress  of  July  1,  1902, 
establishing  government  in  the  Philippine 
Islands. 

Section  3.    Remedies  in  Cases  of  the  Deprivation 
of  the  Right  to  Vote 

Although  the  right  to  vote  is  neither  a 
property  right,  nor  a  right  of  person,  but 
only  a  mere  political  privilege,  nevertheless 
it  was  early  settled  in  the  famous  English 
case  of  Ashby  vs.  White,^  that,  under  the 
Common  Law,  a  man  entitled  to  vote  for 
members  of  Parliament  had  a  right  of  action, 
in  trespass  on  the  case,  for  damages  against 
the  election  officers  who  refused  to  receive  his 
vote.  This  rule  was  very  soon  modified  so 
as  to  limit  recovery  to  cases  where  the  vote 
was  rejected  through  malice. - 

In  this  country  an  action  for  damages  will 
lie  against  election  officers  who  wilfully  and 
maliciously  refuse  to  accept  the  vote  of  a  duly 
qualified  voter.^ 

In  an  Illinois  case  it  was  decided  that  the 
election  officials  were  liable  when  the  sole 
ground  for  their  refusal  to  permit  the  plain- 


THE  EIGHT  TO  VOTE  81 

tiff  to  vote  was  the  fact  that  he  was  of  the 
negro  race."* 

The  Massachusetts  rule  on  this  question  dif- 
fers from  the  prevailing  rule  in  this  country, 
and  holds  that  damages  may  be  recovered  for 
the  wrongful  deprivation  of  the  right  to  vote, 
without  proof  of  malice.^  This  rule  has  been 
followed  by  Maine,^  Oliio,"^  and  Wisconsin.^ 

In  a  Connecticut  case,^  it  was  held,  that 
regardless  of  the  question  of  malice  or  good 
faith,  the  election  officers  were  liable  to  a 
registered  voter,  to  whom  they  denied  the 
right  to  vote,  the  registry  list,  under  the  laws 
of  the  State,  being  conclusive  upon  the  elec- 
tion officials. 

In  cases  where  malice  on  the  part  of  the 
election  officials  is  an  element  of  the  action, 
the  courts  have  taken  an  extremely  eral 
position  as  to  the  evidence  which  is  admissible 
on  this  point.  Evidence,  on  behalf  of  one  side 
or  the  other  has  been  admitted  to  prove  that 
the  election  official  knew  that  the  voter  be- 
longed to  the  opposite  political  party  from 
himself;^''  to  prove  that  the  election  officer 
had  acted  under  the  advice  of  a  lawyer  ;^^  and 
to  show  discrimination  on  the  part  of  the  de- 
fendants in  the  cases  of  different  voters,  sim- 
ilarly circumstanced.^- 

In  an  action  of  this  character,  the  plaintiff 


32  ELECTION  LAWS 

must  affirmatively  show  his  right  to  vote,^^ 
and  the  denial  of  such  right.  ^^  It  is  not 
necessary  for  the  plaintiff  to  prove  that  the 
election  was  a  valid  one;  the  mere  fact  that 
it  was  held  is  sufficient.'"' 

In  the  case  of  a  refusal  to  permit  a  quali- 
fied voter  to  vote  for  members  of  Congress, 
the  action  against  the  election  officials  may 
I)e  brought  in  a  State  court,  or  (if  the  amount 
of  the  damages  alleged  is  sufficient)  in  a  Fed- 
eral court. 

When  registration  is  a  necessary  requisite 
for  voting,  the  registration  officials  who 
maliciously  refuse  to  permit  a  qualified  per- 
son to  register,  in  spite  of  a  proper  showing 
on  his  part,  are  liable  for  damages.^'  Elec- 
tion officials  are  also  liable  who  improperly 
and  maliciously  strike  a  voter's  name  from 
the  list  of  voters.  In  a  similar  manner  asses- 
sors who  ]irevent  a  ]n*o]ierly  qualified  person 
from  voting,  by  maliciously  failing  to  assess 
him  (where  assessment  is  a  prerequisite  to 
voting)  are  liable.'" 

When  a  vote  is  i-ejected  because  the  voter's 
name  has  been  improi)erly  erased  from  the 
list,  the  action  is  for  the  wrongful  erasure  of 
the  name,  and  not  for  the  refusal  to  receive 
the  vote.''' 

No  action  will  lie  against  a  carrier  of  pas- 


THE  EIGHT  TO  VOTE  33 

sengers,  on  the  ground  that  because  of  the 
negligence  of  such  carrier  the  plaintiff  did 
not  arrive  at  his  destination  in  time  to  vote 
at  an  election.-*^ 

Where  malice  is  proved  on  the  part  of  the 
officials  rejecting  the  ballot,  punitive  damages 
may  be  recovered.-^ 

Notes 

1.  1  Bro.  P.  C.  45,  2  Ld.  Paym,  936  (de- 
cided in  1703). 

2.  Drewe  vs.  Coulton,  1  East  563 ;  Cullen 
vs.   Morris,   2   Stark  577. 

3.  Swafford  vs.  Templeton,  186  U.  S.  487 ; 
Byler  vs.  Asher,  47  111.  2 ;  Friend  vs.  Hamill, 
34  Md.  298. 

4.  Bernier  vs.  Russell,  89  111.  60. 

5.  Lincoln  vs.  Hapgood,  11  Mass.  354, 

6.  Osgood  vs.  Bradley,  7  Maine  411. 

7.  Jeffries  vs.  Ankeny,  11  Ohio  372. 

8.  Gillespie  vs.  Palmer,  20  Wis.  544. 

9.  Hyde  vs.  Brush,  34  Conn.  454. 

10.  Elbin  vs.  Wilson,  33  Md.  135. 

11.  Miller  vs.  Rucker,  1  Bush  (Ky.)  135. 

12.  Cullen  vs.  Morris,  2  Stark  577. 

13.  Mills  vs.  McCabe,  44  111.  194;  Griffin 
vs.  Rising,  11  Metcalf  (Mass.)  339. 

14.  Gates  vs.  Neal,  23  Peck  (Mass.)  308. 

15.  Bernier  vs.  Russell,  89  111.  60. 

16.  Wiley  vs.  Sinkler,  179  U.  S.  58. 


34  ELECTION  LAWS 

17.  Perry  vs.  Reynolds,  53  Conn.  527, 

18.  Griffin  vs.  Rising,  11  Metcalf  fMass.) 
339. 

19.  Harris  vs.  AYhiteomb,  4  Gray  333. 

20.  i\Iorris  vs.  Colorado  Midland  Railway 
Company,  48  Colo.  147;  109  Pae.  430;  20 
Amer.  &  Eng.  Am.  Cases  1006. 

21.  AViley  vs.  Sinkler,  179  U.  S.  58. 


CHAPTEB  11 

QUALIFICATIONS  OF  VOTERS 

Section  4.    Limitations  on  the  Power  of  a  State 

Legislature  to  Impose  Restrictions  Upon  the 

Right  of  Suffrage 

The  princii^al  limitations  upon  the  power 
of  a  State  legislature  to  impose  restrictions 
upon  the  right  of  suffrage  are  found  in  the 
provisions  of  the  Fifteenth  Amendment  to 
the  United  States  Constitution,  and  in  the  fact 
that  laws  imposing  such  restrictions  must  be 
uniform  in  their  application.  Uniformity  of 
application,  however,  is  not  destroyed  by  the 
fact  that  of  two  citizens  qualified  to  vote  so 
far  as  one  particular  restriction  is  concerned, 
one  only  may  be  permitted  to  vote,  the  other 
being  disqualified  by  some  other  restriction. 

The  Fifteenth  Amendment  to  the  Federal 
Constitution  prohibits  any  discrimination  (as 
to  voting)  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude.^  This  amend- 
ment does  not  confer  on  members  of  the 
negro  race  the  right  to  vote,-  but  it  does 

35 


36  ELECTION  LAWS 

prevent  the  right  being  denied  to  them  for 
this  reason.^ 

Any  State  statute  which  denies  or  abridges 
the  right  of  voting  to  any  person  on  account 
of  race  or  color  is  in  violation  of  the  United 
States  Constitution,  whether  the  attempt  is 
made  to  deprive  a  person  of  his  rights  in  this 
respect  directly  or  indirectly.  The  adoption 
of  the  Fifteenth  Amendment  rendered  invalid 
a  provision  in  any  State  Constitution  limiting 
the  right  of  suffrage  to  members  of  the  white 
race.'* 

Notes 

1.  See  Section  2. 

2.  United  States  vs.  Reese,  92  U.  S.  214. 

3.  Id. 

4.  Neal  vs.  Delaware,  103  U.  S.  370. 

Section  5.    Age  Qualifications 

A  State  has  full  discretion  as  to  the  age 
qualification  to  be  placed  upon  voting.  At 
the  present  time  a  practical  unanimity  has 
been  reached  in  this  respect;  twenty-one 
years  being  adopted  as  the  minimum  voting 
age. 

A  person  may  vote  on  an  election  which 
falls  on  the  day  immediately  preceding  his 
twenty-first  birthday  anniversary.^ 


QUALIFICATION  OF  VOTERS  37 

Notes 

1.     In  re  Griffiths,  1  Kulp    (Pa.)    157. 

Section  6.    Educational  Qualifications 

Educational  qualifications  for  voting  are 
found  in  the  laws  of  a  few  States  and  are 
valid. 

In  a  recent  case,  the  Massachusetts  statutes 
providing  that  certain  persons,  before  regis- 
tering, must  read  a  selection  from  the  Consti- 
tution and  write  their  name,  was  held  not  to 
violate  the  Fourteenth  Amendment  to  the 
United  States  Constitution.^ 

The  educational  qualifications  now  in  force 
in  the  different  States  of  this  country  have 
been  thus  summarized  by  a  recent  writer : 

''Maine,  Massachusetts,  Connecticut,  Dela- 
ware, California,  Wyoming  and  the  States 
mentioned  below  demand  an  ability  to  read, 
Mississippi  allows  men  to  vote  who  can  un- 
derstand the  Constitution  when  read  to  them. 
North  Carolina  has  an  educational  test,  but 
does  not  apply  it  to  those  who  voted  or  whose 
ancestors  voted  before  1867.  South  Carolina 
does  not  deprive  those  intellectually  unfit  if 
they  own  property  assessed  at  $300.  In  Ala- 
bama, voters  must  be  able  to  read  or  must 
own  property  worth  $300,  unless  they  have 


38  ELECTION  LAWS 

seen  military  service.  Virginia  requires  abil- 
ity to  read  or  understand  the  Constitution, 
or  the  payment  of  a  State  tax  not  less  than 
one  dollar  per  year,  unless  the  individual  has 
seen  military  service  or  is  the  son  of  an 
American  soldier.  In  Louisiana  those  may 
vote  who  can  read  or  write,  or  who  own  prop- 
erty assessed  at  $300,  or  whose  ancestors 
voted  before  1867.  Georgia  permits  veterans 
and  their  descendants  to  vote,  limiting  the 
suffrage  for  others  to  those  who  can  read  or 
understand  the  Constitution  or  own  taxable 
property  worth  $500.  The  clauses  in  five  of 
these  Constitutions  that  really  exempt  whites 
from  the  disabilities  which  are  supposed  to  be 
the  same  for  all,  are  called  'grandfather 
clauses.'  The  United  States  courts  have  re- 
fused to  consider  cases  which  might  force 
them  to  declare  whether  these  provisions  are 
contrary    to    the    Fifteenth    Amendment.  "- 

Notes 

1.  Stone    vs.    Smith,    159    Mass.    413;    34 
N.  E.  521. 

2.  Ashley's    American    Government,    See. 
30. 

Section  7.     Religious  Qualifications 
There  is  nothing  in  the  Constitution  of  the 
United  States  to  prevent  a  Stato  fi'om  im- 


QUALIFICATION  OF  VOTEKS  39 

posing  religious  qualifications  upon  voting. 
The  right  to  vote  might  even  be  limited  to 
members  of  a  single  denomination. 

The  Constitution  of  each  of  the  States,  how- 
ever, contains  provisions  against  such  a  pro- 
cedure; and  there  are  now  no  religious  re- 
strictions placed  upon  voting,  in  this  country, 
except  that  a  few  Western  States  have  pro- 
visions in  their  laws  directed  against  the  Mor- 
mons. Such  statutes  are  in  the  main  directed 
against  the  practice  of  polygamy,  rather  than 
against  the  mere  mental  belief  in  the  tenets 
of  the  Mormon  religion. 

A  statute  of  Nevada  which  prohibited 
Mormons  from  voting  at  elections,  and  which 
required  those  applying  to  register  as  voters 
to  take  oath  that  they  were  not  members  of 
the  Mormon  church,  was  held  to  be  unconsti- 
tutional under  the  Nevada  State  Constitu- 
tion.^ 

Notes 

1.     State  vs.  Findlay,  20  Nev.  198,  19  Pac. 
241. 

Section  8.    Property  Qualifications 

The  ownership  of  property,^  or  the  pay- 
ment of  taxes ;-  may  be  fixed  as  one  of  the 
qualifications  of  a  voter.  Such  restrictions 
are  not  in  conflict  with  the  Fifteenth  Amend- 


40  ELECTION  LAWS 

ment  to  the  Federal  Constitution.'^  However, 
if  the  provisions  of  the  Fourteenth  Amend- 
ment were  enforced,  such  restrictions  would 
constitute  a  sufficient  ground  for  the  reduc- 
tion of  the  State's  representation  in  the 
House  of   Kepresentatives. 

Where  property  qualifications  for  voting 
exist,  a  person  to  whom  land  is  deeded, 
merely  for  the  purpose  of  permitting  him  to 
vote,  without  any  intention  of  changing  the 
real  ownership  of  the  property  is  not  entitled 
to  vote.^ 

Notes 

1.  Inhabitants  of  Windham  vs.  Inhabit- 
ants of  Portland,  4  Mass.  384;  In  re  Morgan 
16  R.  I.  542,  18  Atl.  279. 

2.  Frieszleber  vs.  Shallcross,  9  Houst.  1, 
19  Atl.  576. 

3.  United  States  vs.  Eeese,  92  U.  S.  214. 

4.  Murdock  vs.  Weiner,  55  111.  App.  527. 

Section  9.    Sex  Qualifications 

The  question  of  extending  the  elective  fran- 
chise to  women,  or  of  restricting  it  to  the  male 
sex,  is  one  entirely  within  the  discretion  of 
each  State.  The  denial,  to  women,  of  the 
right  to  vote  does  not  conflict,  in  any  way 
with  either  the  Fourteenth  or  the  Fifteenth 


QUALIFICATION  OF  VOTEES  41 

Amendment  to  the  United  States  Constitu- 
tion. On  the  other  hand  there  is  nothing  in 
the  Federal  Constitution  which  prevents  a 
State  from  giving  full  suffrage  to  women,  as 
has  been  done  by  Wyoming,  Utah,  Colorado, 
Idaho,  Washington  and  California. 

Partial  suffrage,  i.  e.  the  right  to  vote  for 
certain  officials  only,  may  be  granted  to 
women.^  Suffrage  in  a  more  or  less  limited 
form  is  now  possessed  by  women  in  Arizona, 
Delaware,  Illinois,  Indiana,  Iowa,  Kansas, 
Kentucky,  Louisiana,  Massachusetts,  Michi- 
gan, Minnesota,  Montana,  Nebraska,  Nevada, 
New  Hampshire,  New  Jersey,  North  Dakota, 
Oklahoma,  Oregon,  South  Dakota,  Texas, 
Vermont,  and  Wisconsin. 

In  States  where  both  men  and  women  have 
the  general  right  of  suffrage,  no  qualification 
for  voting  can  be  imposed  upon  the  members 
of  one  sex,  and  not  upon  those  of  the  other. 
Thus  a  statute  of  Utah,  requiring  all  male 
voters  to  be  taxpayers,  without  imposing  the 
same  condition  upon  female  voters,  was  held 
to  be  unconstitutional  and  void.^ 

Notes 

1.  Plumraer  vs.  Yost,  144  I.  61,  33  N.  E. 
191. 

2.  Lyman  vs.  Martin,  2  Utah  136. 


42  ELECTION  LAWS 

Section  10.     Citizenship  Qualifications 

"All  persons  born  or  naturalized  in  tlie 
United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside."^ 

No  State  can  in  any  way  limit  the  right  of 
citizenship.  A  person  born  in  this  country 
is  a  citizen,  even  although  his  parents  belong- 
to  a  race,  members  of  which  cannot  become 
naturalized  in  this  country,  (e.  g.  Chinese) 

There  is  no  direct  connection  between  citi- 
zenship and  the  right  to  vote.  A  citizen  may 
be  disqualified  from  voting  by  the  application 
of  age,  education,  sex,  property,  or  other 
qualifications  for  voters.  On  the  other  hand, 
citizenshij)  is  not  a  necessary  qualification  of 
a  voter.-  Aliens  who  have  declared  the  in- 
tention to  become  citizens,  may  vote  under 
certain  restrictions  in  Alabama,  Arkansas, 
Colorado,  Indiana,  Michigan,  Missouri,  North 
Dakota,  Oregon,  South  Dakota,  Texas,  and 
Wisconsin. 

In  a  great  majority  of  the  States  only 
citizens  are  permitted  to  vote,  but  in  a  few 
States  the  right  of  suffrage  is  extended  to 
those  who  have  declared  their  intention  to 
become  citizens,  or  who  have  been  honorably 
discharged  from  the  army  or  navy  of  the 
United  States.-^ 


QUALIFICATION  OF  VOTERS  43 

Notes 

1.  Fourteenth     Amendment     to     United 
States  Constitution,  Sec.  1. 

2.  Spragins  vs.  Houghton,  2  Seam.    (111.) 
377. 

3.  See  statutes  of  the  particular  states. 

Section  11.     Residence  Qualifications 

Eesidence  qualifications  for  voters  are  to 
be  found  in  the  statutes  of  all  of  the  States. 
In  some  States  only  a  certain  period  of  resi- 
dence in  the  States  and  in  the  county  are 
specified,  in  other  States  a  period  of  residence 
in  town  or  precinct,  or  both  is  also  added. 

The  periods  to  jDrevious  residence  required, 
in  the  different  States,  to  qualify  a  person  to 
vote  are  as  follows : 

In  Alabama,  two  years  in  the  State,  one 
year  in  the  county,  three  months  in  the  town, 
three  months  in  precinct. 

In  Arkansas,  one  year  in  the  State,  six 
months  in  county,  thirty  days  in  the  town, 
and  thirtj^  days  in  the  precinct. 

In  California,  one  year  in  the  State,  ninety 
days  in  the  county,  and  thirty  days  in  the 
precinct. 

In  Colorado,  one  year  in  the  State,  ninety 
days  in  the  county,  thirty  days  in  the  town, 
and  ten  days  in  the  precinct. 


44  ELKCTTOX  LAWS 

In  Connecticut,  one  year  in  the  State  and 
six  montlis  in  the  town. 

In  Delaware,  one  year  in  the  State,  three 
months  in  the  county  and  thirty  days  in  the 
precinct. 

In  Florida,  one  year  in  the  State,  six 
months  in  the  county,  and  thirty  days  in  the 
precinct. 

In  Georgia,  one  year  in  the  State,  and  six 
months  in  the  county. 

In  Idaho,  six  months  in  the  State,  thirty 
days  in  the  county,  three  months  in  the  town, 
and  ten  days  in  the  precinct. 

In  Illinois,  one  year  in  the  State,  ninety 
days  in  the  county,  and  thirty  days  in  the 
precinct. 

In  Indiana,  six  months  in  the  State,  sixty 
days  in  the  county,  sixty  days  in  the  town, 
and  thirty  days  in  the  precinct. 

In  Iowa,  six  months  in  the  State,  sixty  days 
in  the  county,  ten  days  in  the  town,  and  ten 
days  in  the  precinct. 

In  Kansas,  six  months  in  the  State,  thirty 
days  in  the  county,  thirty  days  in  the  town, 
and  ten  days  in  the  precinct. 

In  Kentucky,  one  year  in  State,  six  months 
in  the  county,  sixty  days  in  the  town  and 
sixty  days  in  the  precinct. 

In  Louisiana,  two  years  in  the  State,  one 


QUALIFICATION  OF  VOTEES  45 

year  in  the  county,  and  six  months  in  the 
precinct. 

In  Maine,  three  months  in  the  State,  three 
months  in  the  county,  three  months  in  the 
town,  and  three  months  in  the  precinct. 

In  Maryland,  one  year  in  the  State,  six 
months  in  the  county,  six  months  in  the  town 
and  one  day  in  the  i^recinct. 

In  Massachusetts,  one  year  in  the  State, 
six  months  in  the  county,  six  months  in  the 
town,  and  six  months  in  the  precinct. 

In  Micliigan,  six  months  in  the  State, 
twenty  days  in  the  county,  twenty  days  in  the 
town,  and  twenty  days  in  the  precinct. 

In  Minnesota,  six  months  in  the  State, 
tliirty  days  in  the  county,  thirty  days  in  the 
town,  and  thirty  days  in  the  precinct. 

In  Missouri,  one  year  in  the  State,  sixty 
days  in  the  county,  sixty  days  in  the  town, 
and  sixty  days  in  the  precinct. 

In  Montana,  one  year  in  the  State,  thirty 
days  in  the  county,  thirty  days  in  the  town 
and  thirty  days  in  the  precinct. 

In  Nebraska,  six  months  in  the  State,  forty 
days  in  the  county,  ten  days  in  the  town,  and 
ten  days  in  the  precinct. 

In  Nevada,  six  months  in  the  State,  thirty 
days  in  the  county,  thirty  days  in  the  town, 
and  thirty  days  in  the  precinct. 


46  PJLECTION  LAWS 

In  New  Ilampsliiro,  six  months  in  the  Sti^te, 
six  months  in  the  county,  six  months  in  the 
town,  and  six  months  in  the  precinct. 

In  New  Jersey,  one  year  in  the  State,  five 
months  in  the  county. 

In  New^  York,  one  year  in  the  State,  four 
months  in  the  county,  thirty  days  in  the  town, 
and  thirty  days  in  the  precinct. 

In  North  Carohna,  two  years  in  the  State, 
six  months  in  the  county,  and  four  months  in 
the  precinct. 

In  North  Dakota,  one  year  in  the  State, 
six  2nonths  in  the  county,  and  ninety  days  in 
the  precinct. 

In  Ohio,  one  year  in  the  State,  thirty  days 
in  the  county,  twenty  days  in  the  town,  and 
twenty  days  in  the  precinct. 

In  Oklahoma,  one  year  in  the  State,  six 
months  in  the  county,  thirty  days  in  the  town, 
and  thirty  days  in  the  precinct. 

In  Oregon,  six  months  in  the  State. 

In  Pennsylvania,  one  year  in  the  State  and 
two  months  in  the  precinct. 

In  Khode  Island,  two  years  in  the  State, 
and  six  months  in  the  town. 

In  South  Carolina,  two  years  in  the  State, 
one  year  in  the  county,  four  months  in  the 
town,  and  four  months  in  the  precinct. 

In  South  Dakota,  six  months  in  the  State, 


QUALIFICATION  OF  VOTEES  47 

thirty  days  in  the  county,  ten  days  in  the 
town  and  ten  days  in  the  precinct. 

In  Tennessee,  one  year  in  the  State,  and  six 
months  in  the  county. 

In  Texas,  one  year  in  the  State,  six  months 
in  the  county,  and  six  months  in  the  town. 

In  Utah,  one  year  in  the  State,  four  months 
iji  the  county,  and  sixty  days  in  the  precinct. 

In  Vermont,  one  year  in  the  State,  three 
months  in  the  county,  three  months  in  the 
town  and  three  months  in  the  precinct. 

In  Virginia,  two  years  in  the  State,  one 
year  in  the  county,  one  year  in  the  town,  and 
thirty  days  in  the  precinct. 

In  Washington,  one  year  in  the  State, 
ninety  days  in  the  county,  thirty  days  in  the 
town,  and  thirty  days  in  the  precinct. 

In  West  Virginia,  one  year  in  the  State, 
sixty  days  in  the  county,  and  ten  days  in  the 
town. 

In  Wisconsin,  one  year  in  the  State,  ten 
days  in  the  county,  ten  days  in  the  town,  and 
ten  days  in  the  precinct. 

In  Wyoming,  one  year  in  the  State,  sixty 
days  in  the  county,  ten  days  in  the  town,  and 
ten  days  in  the  precinct. 

''By  the  Constitutions  of  many  States,  no 
person  shall  be  deemed  to  have  lost  a  resi- 
dence for  the  purpose  of  voting,^  by  reason 


48  ELECTION  LAWS 

of  his  absence  from  the  State  while  employed 
in  the  service  of  the  United  States,-  or  of  the 
State.^  Or,  while  engaged  in  the  navigation 
of  the  waters  of  this  State  or  of  the  United 
States,^  or  temporarily  absent  from  the 
State.^  Or,  while  confined  in  prison,*"'  or  kept 
at  an  almshouse  or  asylum  at  the  public  ex- 
pense J  Or  while  a  student  in  any  institution 
of  learning.^  And  in  several  States  no  person 
shall  be  deemed  to  have  gained  a  residence  in 
the  State  by  reason  of  his  presence,  for  the 
various  reasons  respectively  specified.^" 

But  the  undergraduates  of  a  college  who 
are  free  from  parental  control  and  regard  the 
place  where  the  college  is  situated  as  their 
home,  having  no  other  to  which  to  return  in 
case  of  sickness  or  domestic  affiliations  are  as 
much  entitled  to  vote  as  any  other  resident  of 
the  town  pursuing  his  usual  vocation ;  but  as 
a  general  fact,  undergraduates  of  colleges  are 
no  more  indentified  with  residents  of  the  town 
in  which  they  are  pursuing  their  studies  than 
the  merest  stranger. 

Under  Constitution  of  New  York,  Article  2, 
Section  3,  which  provides  that  no  person  can 
gain  or  lose  his  residence  as  a  voter  by  his 
presence  or  absence  as  a  student  at  a  semi- 
nary, evidence  that  a  student  had  entered  a 
seminary   for   the   purpose   of  becoming   a 


QUALIFICATION  OF  VOTEES  49 

priest,  and  that  no  person  is  allowed  to  enter 
or  remain  in  a  seminary  as  a  student  unless 
he  renounces  all  other  residences  or  homes 
and  that  on  his  admission  to  the  priesthood 
he  continues  in  the  seminary  until  assigned 
elsewhere,  has  been  held  not  to  be  sufficient 
to  change  his  legal  residence,  as  the  change 
of  residence  of  a  student  must  be  proved  by 
acts  independent  of  his  status  as  a  student. ^^ 

Under  Article  2,  Section  3,  of  the  New 
York  Constitution,  declaring  that  no  person 
shall  be  deemed  to  have  gained  or  lost  a  resi- 
dence by  reason  of  his  presence  or  absence, 
while  "kept"  in  any  almhouse  or  other  asy- 
lum or  institution,  wholly  or  partly  supported 
at  the  public  expense  or  by  charity,  an  "un- 
paid helper"  in  Bellevue  Hospital,  who  was 
simply  an  inmate  with  permission  to  use  it 
as  an  asylum,  receiving  his  boarding  and 
lodging  for  the  work,  which  he  was  required 
to  do,  was  "kept"  therein,  within  the  mean- 
ing of  the  Constitution,  and  hence  could  not 
gain  a  residence  entitling  him  to  vote  in  the 
district.^^ 

A  person  residing  at  the  Samaritan  Home 
for  the  aged  does  not,  by  such  residence,  ac- 
quire the  right  to  vote  at  elections  within  the 
district  wherein  such  home  is  located.^- 


50  ELECTION  LAWS 

Notes 

1.  Or  for  the  purpose  of  holding  office 
(Col.,  Ky.,  Tex.)  or  for  any  purpose  what- 
ever.    (Ark.,  Cal.,  IncL,  Wis.) 

2.  Ariz.,  1693;  Ark.,  19,  7;  Cal.,  2,  4;  20, 
12;  Col.,  7,  4;  Ida.,  6,  5;  111.,  7,  4;  Ind.,  2,  4 
Kan.,  5,  3;  Me.,  2,  1;  Mich.,  7,  5;  Minn.,  7,  3 
Mo.,  8,  7;  Mon.,  9,  3;  X.  D.,  125;  Nev.,  2,  3 
N.  Y.,  2,  3 ;  Ore.,  2,  4 ;  Pa.,  8.  13 ;  S.  C,  2,  7 
S.  D.,  7,  6 ;  Tex.,  16,  9  ;  Wash.,  6,  4 ;  Wis.,  3,  3 
Wym.,  6,  7.    These  exceptions  do  not  apply  to 
a  person  serving  out  a  sentence  in  a  peniten- 
tiary for  infamous  crime. 

3.  Ark.,  Cal.,  Col.,  Ida.,  111.,  Ind.,  Ky.,  Me., 
Mich.,  Mo.,  Mon.,  N.  D.,  Ore.,  Pa.,  S.  D.,  Tex., 
Wash.,  Wis. 

4.  Ariz.,  Cal.,  Ida.,  Kan.,  La.,  Mich.,  Minn.. 
Mo.,  Mon.,  Nev.,  N.  Y.,  Ore.,  Pa.,  S.  C,  Wash., 
Or,  in  all  these  last,  except  Idaho  and  Min- 
nesota, of  the  waters  of  the  high  seas. 

5.  Ala.,  1,  31 ;  Ariz..  Ark..  S.  C,  1,  12. 

6.  Ariz.,  Cal.,  Col.,  Kan.,  Mich.,  Minn.,  Mo., 
Nev.,  N.  Y.,  Ore.,  Pa. 

7.  Ariz.,  Cal.,  Col.,  Ida.,  Kan.,  La.,  Mich., 
Minn.,  Mo.,  Mon.,  Nev.,  N.  Y.,  Ore.,  Pa.,  Va., 
Wash. 

8.  Ariz.,  Cal.,  Col.,  Ida.,  Kan.,  La.,  Mich., 
Minn.,  Mo.,  Nev.,  N.  Y.,  Ore.,  Pa.,  S.  C,  Va.  24, 
Wash. 

9.  Ariz.,  Cal.,  Col.,  Ida.,  Kan.,  La.,  ^lich.. 
Mo.,  Mon.,  Nev.,  N.  Y.,  Ore.,  Pa.,  S.  C,  Wash. 


QUALIFICATION  OF  VOTERS  51 

So,  in  ]\Iaine,  as  to  paupers  or  asylum  inmates 
only.  Stimson's  Federal  &  State  Constitu- 
tions, Part  III,  §  242. 

10.  Order  (Sup.  1899)  62  N.  Y.  S.  124; 
Affirmed  In  re  Barry  58,  N.  E.  12,  164  N.  Y. 
18,  8  N.  Y.  Ann.  Cas.  148. 

11.  Order  62  N.  Y.  S.  816,  48  App.  Div. 
203.  Affirmed,  People  vs.  Hagen,  5^  N.  E. 
1091,  165  N.  Y.  607. 

12.  Order  (1900)  66  N.  Y.  S.  659,  54  App. 
Div.  630.  Affirmed,  In  re  Olwell,  59  N.  W. 
1128,  165  N.  Y.  642. 

Section  12.    Special  Disqualifications 

Certain  persons,  who  possess  all  the  posi- 
tive requirements  for  citizenship,  are  never- 
theless, especially  disqualified  in  every  State. 
The  classes  of  persons  thus  specially  disquali- 
fied are  persons  of  unsound  mind,  and  certain 
classes  of  felons.  Some  States  disqualify 
paupers. 

The  classes  of  persons  disqualified  from 
voting  in  the  different  States  are  as  follows : 

In  Alabama,  persons  convicted  of  treason, 
embezzlement  of  public  funds,  malfeasance  in 
office  or  other  penitentiary  offenses,  idiots  or 
insane. 

In  Arkansas,  idiots,  ijisane,  convicts  until 
pardoned,  non-payment  of  poll  tax, 


52  ELECTION  LAWS 

In  California,  Cliineso,  insane,  embezzlers 
of  public  moneys,  convicts. 

In  Colorado,  persons  under  guardianship, 
insane,  idiots,  prisoners  convicted  of  bribery. 

In  Connecticut,  persons  convicted  of  felony 
or  other  infamous  crime  unless  pardoned. 

In  Delaware,  insane,  idiots,  felons,  paupers. 

In  Florida,  persons  not  registered,  insane 
or  under  guardian,  felons,  convicts. 

In  Georgia,  persons  convicted  of  crime  pun- 
ishable ])y  imprisonment,  insane,  delinquent 
taxpayers. 

In  Idaho,  Chinese,  Indians,  insane,  felons, 
polygamists,  bigamists,  traitors,  bribers. 

In  Illinois,  convicts  of  iDenitentiary  until 
pardoned. 

In  Indiana,  convicts  and  persons  disquali- 
fied by  judgment  of  a  court.  United  States 
soldiers,  marines  and  sailors. 

In  Iowa,  idiots,  insane,  convicts. 

In  Kansas,  insane,  persons  under  guardian- 
ship, convicts,  bribers,  defrauders  of  the  gov- 
ernment and  persons  dishonorably  discharged 
from  service  of  United  States. 

In  Kentucky,  treason,  felony,  bribery, 
idiots,  insane. 

In  Louisiana,  idiots,  insane,  all  crimes  pun- 
ishable by  imprisonment,  embezzling  public 
funds  unless  pardoned. 


QUALIFICATION  OF  VOTEES  53 

In  Maine,  paupers,  persons  under  guar- 
dianship, Indians  not  taxed. 

In  Maryland,  persons  convicted  of  larceny 
or  other  infamous  crime,  persons  under  guar- 
dianship, insane,  idiots. 

In  Massachusetts,  paupers  (except  United 
States  soldiers),  persons  under  guardianship. 

In  Michigan,  Indians  holding  tribal  rela- 
tions, duelists  and  their  abettors. 

In  Minnesota,  treason,  felony  unless  par- 
doned, insane,  persons  under  guardianship, 
uncivilized  Indians. 

In  Mississippi,  insane,  idiots,  felons,  de- 
linquent taxpayers. 

In  Missouri,  paupers,  persons  convicted  of 
felony,  or  other  infamous  crime  or  misde- 
meanor or  violating  right  of  suffrage,  unless 
pardoned ;  second  conviction  disfranchises. 

In  Montana,  Indians,  felons,  idiots,  insane. 

In  Nebraska,  lunatics,  persons  convicted  of 
treason  or  felony  unless  pardoned,  United 
States  soldiers  and  sailors. 

In  Nevada,  insane,  idiots,  convicted  of  trea- 
son or  felony,  unamnestied  confederates 
against  the  United  States,  Indians  and 
Chinese. 

In  New  Hampshire,  paupers  (except  honor- 
ably discharged  soldiers),  persons  excused 
from  paying  taxes  at  their  own  request. 


54  ELECTION  LAWS 

In  New  Jersey,  ]iaupers,  insane,  idiots  and 
persons  convicted  of  crimes  wliicli  exclude 
them  from  being  witnesses  unless  pardoned. 

In  New  York,  persons  convicted  of  bribery 
or  any  infamous  crime  unless  pardoned,  bet- 
tors on  result  of  election,  bribers  for  votes 
and  tlie  bribed. 

In  North  Carolina,  idiots,  lunatics,  con- 
^"icted  of  felony  or  other  infamous  crimes, 
atheists. 

In  North  Dakota,  felons,  idiots,  convicts 
unless  pardoned.  United  States  soldiers  and 
sailors. 

In  Ohio,  idiots,  insane.  United  States  sol- 
diers and  sailors,  felons  unless  restored  to 
citizenship. 

In  Oklahoma,  idiots,  felons,  paupers  and 
lunatics. 

In  Oregon,  idiots,  insane,  convicted  felons, 
Chinese,  United  States  soldiers  and  sailors. 

In  Pennsylvania,  persons  convicted  of  some 
oiTense  forfeiting  right  of  suffrage,  non- 
taxpayers. 

Khode  Island,  paupers,  lunatics,  idiots,  con- 
victed of  bribery  or  infamous  crime  until 
restored. 

South  Carolina,  paupers,  insane,  idiots, 
convicted  of  treason,  dueling  or  other  in- 
famous crime. 


QUALIFICATION  OF  VOTEES  55 

South  Dakota,  persons  under  guardian, 
idiots,  insane,  convicted  of  treason  or  felony 
unless  pardoned. 

In  Tennessee,  persons  convicted  of  bribery 
or  other  infamous  crime,  failure  to  pay  poll 
tax. 

In  Texas,  idiots,  lunatics,  paupers,  con- 
victs, United  States  soldiers  and  sailors. 

In  Utah,  idiots,  insane,  convicted  of  trea- 
son or  violation  of  election  laws. 

In  Vermont,  unpardonable  convicts,  desert- 
ers from  United  States  service  during  the 
war,  ex-Confederates. 

In  Virginia,  idiots,  lunatics,  convicts  unless 
pardoned  by  the  legislature. 

In  Washington,  Indians  not  taxed. 

In  West  Virginia,  paupers,  idiots,  lunatics, 
convicts,  bribers.  United  States  soldiers  and 
sailors. 

In  Wisconsin,  insane,  under  guardian,  con- 
victs unless  pardoned. 

In  Wyoming,  idiots,  insane,  felons,  persons 
unable  to  read  the  State  Constitution. 


CHAPTER  III 

REGISTRATION 

Section  13.    Constitutional  Provisions  as  to 
Registration 

In  some  of  the  States  the  State  Constitu- 
tion contains  provisions  as  to  the  registration 
of  voters.  Several  of  these  Constitutions  ex- 
pressly provide  that  there  shall  be  registra- 
tion of  voters  ;^  while  in  a  few  States  the  Con- 
stitution contains  provisions  against  regis- 
tration. In  Arkansas  registration  laws  are 
expressly  prohibited  by  the  Constitution,  and 
in  West  Virginia  the  Constitution  forbids 
the  Legislature  to  establish  any  board  of 
registration  of  voters  and  provides  that  no 
voter  shall  be  deprived  of  lii>s  vote  because 
his  name  is  not  registered  as  a  voter. 

Notes 

1.  E.  G. :  Alabama,  Delaware,  Florida, 
Georgia,  Indiana,  Kentucky,  Louisiana,  Mary- 
land, Missouri,  Nevada,  New  York,  Oklahoma, 
Rhode  Island,  Pennsylvania,  South  Carolina, 
Virginia,  Washington  and  Wyoming. 
5G 


REGISTEATION  57 

Section  14.    Power  of  State  Legislatures  Over 
Registration 

In  the  majority  of  the  States  the  enact- 
ment of  laws  requiring  the  registration  of 
voters  as  a  prerequisite  to  voting  is  left  to 
the  discretion  of  the  State  Legislature. 
Under  the  powers  of  a  quasi  sovereign  gov- 
ernment, the  legislative  department  of  any 
State  government  has  the  power  to  pass  reg- 
istration laws,  when  such  power  is  neither 
granted  nor  prohibited  by  the  Constitution 
of  the  State;  under  the  condition,  however, 
that  the  registration  laws  must  be  such  as  are 
merely  intended  to  aid  in  the  determination 
of  the  qualifications  of  voters,  and  not  such 
as  to  increase  such  qualifications.^ 

On  the  other  hand,  it  is  held  that  while 
constitutional  provisions  requiring  the  Leg- 
islature to  pass  registration  laws  are  theo- 
retically mandatory  and  not  merely  direc- 
tory in  their  character,  still  nevertheless 
there  is  no  authority  with  the  power  to  com- 
pel the  Legislature  to  pass  such  laws,  and 
their  failure  to  do  so  does  not  invalidate 
subsequent  elections. 

In  Stallcup  vs.  Tacoma-  the  Supreme 
Court  of  the  State  of  Washington,  in  con- 
struing Article   6,   Section  7,   of  the   State 


58  KLKCTION  LAWS 

Constitution,  wliieli  provided  as  follows : 
"The  Legislature  shall  enact  a  registration 
law,  and  shall  require  a  compliance  with  such 
law  before  any  elector  shall  bo  allowed  to 
vote ;  provided,  that  this  provision  is  not 
compulsory  upon  the  Legislature  except  as 
to  cities  and  towns  having  a  population  of 
over  five  hundred  inhabitants.  In  all  other 
cases  the  Legislature  may  or  may  not  require 
registration  as  a  prerequisite  to  the  right  to 
vote,  and  the  same  system  of  registration 
need  not  be  adopted  for  both  classes,"  said: 

''Our  conclusion  is  that  the  right  to  vote 
in  this  State  at  any  election,  general  or  spe- 
cial, resides  in  those  possessing  the  qualifi- 
cations prescribed  by  Section  1,  Article  6,  of 
the  Constitution,  subject  only  to  compliance 
with  such  reasonable  provisions  respecting 
registration  and  regulating  the  exercise  of 
the  right,  as  the  Legislature  may  provide,  but 
the  mere  failure  or  neglect  of  the  Legislature 
to  make  any  i)rovision  for  registration  does 
not  operate  to  deprive  those  having  the  quali- 
fications of  the  Constitution  from  exercising 
the  elective  franchise." 

*'The  Constitution  of  South  Carolina, 
adopted  in  18G8,  required  the  Legislature  to 
pass  a  registration  law.  Init  none  had  been 
passed  before   the   presidential   election   in 


EEGISTEATION  59 

1876.  Objections  to  counting  the  electoral 
vote  of  the  State,  for  this  reason,  were  made 
before  the  Electoral  Commission.  In  reply 
to  these  objections  it  was  said  that  the  Con- 
stitution of  the  United  States  had  devolved 
the  duty  of  directing  the  manner  of  appoint- 
ing Presidential  Electors  on  the  Legislatures 
of  the  States,  and  that  the  requirement  of 
the  State  Constitution  could  not  bind  the 
Legislature  so  far  as  such  elections  were 
concerned.  There  was  no  difference  of  opin- 
ion upon  this  point  between  the  commission- 
ers, Messrs.  Abbott  and  Bayard,  expressly 
holding  it  to  be  of  no  validity.  Mr.  Com- 
missioner Abbott,  in  speaking  of  the  laws  of 
the  State  as  being  calculated  to  promote 
fraud,  said:  ^But  although  this  is  repre- 
hensible in  the  highest  degree,  and  shows  the 
fraudulent  intent  of  the  party  in  power,  I 
agree  it  does  not  furnish  a  sufficient  reason 
to  reject  the  vote  of  the  State.  The  law  cer- 
tainly is  mandatory  upon  the  legislature,  but 
if  that  body  refuses  to  obey  to  do  its  duty, 
and  execute  the  mandate,  by  making  a  law  to 
provide  for  registration,  such  a  refusal,  how- 
ever fraudulent,  cannot  deprive  the  State  and 
its  people  of  the  right  to  vote.  Any  other 
construction  would  put  an  end  to  the  govern- 


60  ELECTION  LAWS 

ment  and  prevent  the  people  from  electing 
any  officers,  State  or  National.'  "^ 

Notes 

1.  Byler  vs.  Asher,  479  111.  101;  Caper  vs. 
Foster,  12  Pickering  (Mass.)  485;  Page  vs. 
Allen,  58  Pa.  St.  338,  98  Am.  Dec.  272. 

2.  13  Washington  142.  The  validity  of  the 
same  election  was  also  in  question  in  the  case 
of  Seymour  vs.  Tacoma,  6  Washington  138, 

3.  Cong.  Eec.  Vol.  5,  pt.  4,  237  and  Am. 
&  Eng.  Encye.  of  Law,  second  edition,  Vol. 
X,  page  611,  note. 

Section  15.    General  Application  of  Registration 
Laws.    Exceptions 

It  is  not  necessary  (in  the  absence  of  any 
constitutional  provision  on  the  point)  that  a 
State  Legislature  in  passing  a  registration 
law  should  make  it  of  universal  application. 
In  many  States  the  registration  laws  only 
apply  to  cities  of  over  a  certain  population. 
Where,  however,  the  registration  laws  are 
made  to  apply  to  certain  localities  and  not 
to  others,  the  classification  must  not  be  an 
arbitrary  one,  but  must  be  based  upon  some 
reasonable  ground  of  distinction. 

A  law  of  this  character  was  construed  in 
State  vs.  Shepherd,^  where  it  was  held  that: 


EEGISTEATION  61 

''The  Kansas  Act  of  March  2,  1889  (Laws 
1889,  c.  206),  relating  to  the  registration  of 
voters  in  cities  of  the  first  class,  where  the 
metropolitan  police  law  is  or  may  be  in  force, 
and  where  more  than  six  thousand  votes  were 
cast  at  the  general  election  in  November, 
1888,  or  shall  be  so  cast  at  any  future  general 
election,  applied  only  to  cities  of  the  first 
class  where  more  than  six  thousand  votes 
have  been  cast  either  at  the  general  election 
in  November,  1888,  or  at  some  general  elec- 
tion since  then." 

The  question  has  often  arisen  as  to  whether 
a  general  registration  law  should  be  held  to 
apply  in  the  case  of  special  elections.  In 
Ben  vs.  State-  it  was  held  that  the  provision 
of  the  Mississippi  Constitution  providing  that 
"electors  shall  not  be  registered  within  four 
months  next  before  any  election  at  which  they 
may  offer  to  vote,"  did  not  apply  to  local 
option  elections.  In  Seymour  vs.  Tacoma^  it 
was  held  that  a  law  requiring  the  registration 
of  voters  for  all  elections  for  municipal  and 
other  offices  did  not  apply  to  elections  held  to 
vote  upon  propositions  for  the  purchase  of 
water  works  and  light  plants  by  a  city. 

Notes 

1.     42  Kan.  360. 


62  ELECTION  LAWS 

2.  71  Miss.  1. 

3.  (i  AVash.   ViS. 

Section  16.    Registration  Officials 

The  (inalificatioiis  and  metliods  of  appoint- 
ment of  election  officials  differ  so  greatly  in 
the  different  States  that  no  general  state- 
ments on  this  subject  can  be  made  in  a  book 
of  this  size.  In  some  States  the  registration 
officials  are  the  same  as  the  election  officials, 
while  in  other  States  the  two  sets  of  officials 
are  different  men. 


CHAPTER  IV 
POLITICAL  PARTIES 

Section  17.    Party  Organization  and  Party  Names 

Government  in  the  United  States  has 
always  heen  distinctively  a  government  by 
political  parties.  For  a  long  period,  during 
the  early  history  of  the  Republic,  the  political 
parties  were  entirely  extra-judicial,  and  no 
control  over  such  parties,  their  committees 
or  conventions  was  attempted  by  the  courts. 
The  increasing  imi:)ortance  of  the  political 
organizations  has  brought  about  an  ever  in- 
creasing degree  of  supervision  over  them  on 
the  part  of  the  Judicial  Department  of  the 
Government.^ 

One  of  the  first  requisites  for  a  political 
party  is  some  distinctive  i)arty  name.  Party 
names  must  be  distinctive  and  not  conflict 
with  names  of  previously  existing  parties. 
In  Lind  vs.  Scott-  the  name  ''Social  Demo- 
cratic Party"  was  held  to  conflict  with  the 
name  "Democratic  Party."  A  substantial 
number  of  persons  having  an  organization, 
committees  and  a  distinctive  platform,  is  a 
63 


64  ELECTION  LAWS 

political  party  and  entitled  to  protection  in 
the  use  of  a  political  name,  even  although 
they  do  not  poll  a  sufficient  number  of  votes  to 
have  the  names  of  their  candidates  appear 
upon  the  ballot  otherwise  than  by  petition.^ 

Notes 

1.  See  Sections  19  and  20. 

2.  87  Minn.  226. 

3.  Davidson  vs.  Hanson,  87  Minn.  211. 

Section  18.    Political  Committees 

The  general  government  of  all  political 
parties  is  vested  in  its  permanent  political 
committees.  The  members  of  such  commit- 
tees were  formerly  always  chosen  by  the  vari- 
ous political  conventions,  now  they  are  very 
often  elected  directly  at  the  direct  primaries 
of  their  parties. 

At  the  head  of  the  party  stands  the  Na- 
tional Committee  of  the  party.  Unlike  other 
political  committees,  such  committees  are 
still  nearly  independent  of  the  law.  It  is 
only  incidentally  that  a  State  statute  relative 
to  primaries  or  elections  can  in  any  way 
affect  a  National  Committee  or  a  National 
Convention.  The  results  of  an  election  for 
delegates  to  a  National  Convention,  held  in 
accordance  with  a  State  primary  law,  may 


POLITICAL  PARTIES  65 

be  aeeeptecl  or  rejected  by  the  National  Com- 
mittee, or  the  National  Convention,  and  there 
is  no  way  in  which  such  proceedings  could 
be  reviewed  by  the  courts. 

In  every  local  political  division  there  are 
to  be  found  political  committees  of  each  of 
the  large  political  parties.  There  are  county 
committees,  town  committees,  city  commit- 
tees, and  very  often  ward  committees,  which 
are  branches  of  the  city  committee  of  the  city 
in  which  they  are  located.  There  are  also 
committees  for  districts  created  solely  as 
election  districts  for  certain  officials.  Thus 
there  are  congressional  district  committees 
and  senatorial  district  committees.  All  of 
these  committees  are  under  the  supervision 
of  the  State  Central  Committee  of  the  party. 
Many  of  these  political  committees  have 
nominal  duties  and  do  very  little  work.  The 
important  local  political  committees  are  the 
county  committee  and  the  town  or  city  com- 
mittee. The  relative  importance  of  the 
county  and  town  committees  varies  greatly 
in  the  different  States,  as  the  importance  of 
the  county  and  town  governments  vary  in  the 
States.  In  most  of  the  States  the  county 
committees  do  the  great  part  of  the  political 
work  of  the  party ;  in  others,  as,  for  example, 
Massachusetts,  they  are  hardly  more  impor- 


66  ELECTION  LAWS 

taut  than  the  committee  for  a  senatorial  dis- 
trict. 

' '  Primary  election  laws  usually  intrust  the 
calling  of  elections  to  the  party  governing 
committees^  subject  to  statutory  limitations 
on  their  mode  of  action.-  A  joower  to  the 
state  committee  to  count  the  votes  cast  at  a 
primary  election  for  State  officers  will  be 
read  into  a  statute  which  authorizes  the  com- 
mittee to  call  the  convention  and  authorizes 
local  committees  to  count  the  vote  and  certify 
the  nominations  for  local  officers.^  Redress 
must  be  first  sought  from  the  committee  be- 
fore mandamus  or  certiorari  will  lie  to  review 
its  action."  ^  ^ 

Notes 

1.  "When  called  under  such  statutory  pro- 
visions they  cannot  be  enjoined  (Ky.  St., 
Art.  12,  c.  41),  Meacham  vs.  Young,  24  Ky. 
L.  K.  2141,  72  S.  W.  1094.  State  committee 
denied  power  to  prevent  primary  called  regu- 
larly by  local  committee  or  to  remove  local 
committeemen  and  appoint  new  committee 
for  that  end.  Neal  vs.  Young,  25  Ky.  L.  R. 
183,  72  S.  W.  1082.  Interference  by  state 
committee  enjoined.  Id.  governing  committee 
cannot  question  the  eligibility  of  a  candidate 
before  the  primary  and  refuse  to  place  his 
name  on  the  ballot.  Young  vs.  Beckham,  24 
L.  R.  2134,  72  S.  W.  1092. 


POLITICAL  PAETIES  67 

2.  A  statute  providing  that  rules  shall  not 
be  amended  except  on  reasonable  notice,  does 
not  apply  to  rules  adopted  by  the  first  meet- 
ing of  a  county  general  committee  changing 
rules  of  the  preceding  year.  (Primary  Elec- 
tion Law,  Laws,  1898,  p.  336,  c.  179,  as 
amended  by  Laws,  1899,  p.  968,  c.  473,  subd. 
2),  People  vs.  Democratic  General  Committee, 
82  App.  Div.  (N.  Y.)  173.  And  a  rule  there 
adopted  controls  acts  performed  at  that  time, 
though  it  later  may  become  ineffective  on  ac- 
count of  failure  to  file  a  certificate  thereof 
as  required  by  statute.    Id. 

3.  Ky.  St.,  Art.  12,  pp.  1563,  1565 ;  Young 
vs.  Beckman,  24  Ky.  L.  K.  2135,  72  S.  W.  1092. 

4.  Mandamus  will  not  issue  to  compel  the 
recognition  of  an  unnamed  person  as  member 
of  the  general  committee  of  a  party,  if  such 
person  has  never  applied  for,  or  been  refused 
recognition,  though  by  the  statute  summary 
jurisdiction  is  given  to  review  the  actions  or 
neglect  of  the  officers  or  members  of  a  politi- 
cal convention  committee.  People  vs.  Demo- 
cratic Committee,  82  App.  Die.  (N.  Y.)  172. 

5.  Current  Law. 

Section  19.     Political  Conventions 

A  political  convention  is  a  representative 
body  of  a  particular  political  party.  It  is 
composed  of  delegates  elected  by  tlie  voters 
of  the  party  either  directly  at  primaries  or 


gg  ELECTION  LAWS 

caucuses,  or  indirectly  by  other  conventions. 
Very  often  an  alternate  for  each  delegate  is 
elected  at  tlie  same  time  as  the  delegate  him- 
self, to  take  the  latter 's  place  at  the  conven- 
tion if  he  is  absent.  Conventions  vary 
greatly  in  the  numbers  of  the  delegates  com- 
posing them ;  a  national  convention  of  either 
of  the  two  great  political  parties  has  about 
eleven  hundred  delegates,  a  State  convention 
may  have  as  many  as  fifteen  hundred,  while 
at  the  other  extreme  a  local  convention  may 
be  composed  of  only  a  handful  of  delegates. 

National  political  conventions  are  held 
every  four  years  in  presidential  years.  In 
the  national  convention  of  the  great  political 
parties  each  State  has  twice  as  many  dele- 
gates as  it  has  members  in  both  houses  of 
Congress  combined,  and  representation  is 
also  given  to  tho  Territories.  The  total 
number  of  delegates  in  these  conventions  is 
thus  in  the  neighborhood  of  eleven  hundred. 
All  of  these  delegates  up  to  the  campaign  of 
1912  were  elected  by  preliminary  conventions 
in  the  ditferent  States,  Territories,  or  con- 
gressional districts. 

The  delegates  to  most  political  conventions, 
other  than  national,  are  elected  directly  in 
the  party  primaries  or  caucuses.  Some  of 
the  State  conventions  have  more  delegates 


POLITICAL  PAETIES  69 

than  the  national  conventions,  but  most  of 
the  local  conventions  are  quite  small.  Some- 
times county  conventions  choose  the  delegates 
to  the  State  conventions. 

The  first  thing  to  be  done  in  every  conven- 
tion is  to  decide  who  are  entitled  to  take  part 
in  effecting  the  organization  of  the  conven- 
tion. The  general  procedure  is  for  the  ap- 
propriate political  committee  of  the  party 
(i.  e.,  national  committee  in  the  case  of  a  na- 
tional convention,  State  committee  in  the  case 
of  a  State  convention,  county  committee  in 
the  case  of  a  county  convention,  etc.)  to  make 
up  a  list  of  delegates  who  are  thus  entitled 
to  take  part  in  the  preliminary  business  of 
the  convention.  The  general  custom  is  not 
to  place  on  this  temporary  roll  of  delegates 
the  names  of  any  persons  whose  claim  to  a 
seat  is  disputed,  it  being  considered  best  to 
leave  it  to  the  delegates  whose  claim  to  a 
seat  is  undisputed  to  pass  upon  the  contested 
cases.  If  a  delegate  whose  seat  is  contested 
is  admitted,  he  will  generally  not  vote  on  the 
question  of  his  own  right  to  a  seat.  Occa- 
sionally in  the  case  of  an  unscrupulous  com- 
mittee, delegates  whose  right  to  vote  is 
disputed  will  be  admitted  and  allowed  to  vote 
on  the  question  of  their  own  right  to  a  seat. 

The  chairman  of  the  political  committee  of 


70  ELECTION  LAWS 

the  party  calls  the  convention  to  order.  A 
temporary  organization  is  next  effected  by 
the  election  of  a  temporary  chairman,  tem- 
porary secretary  and  whatever  other  tem- 
porary officers  the  convention  may  decide 
upon.  Following  this  a  committee  on  cre- 
dentials is  appointed  to  decide  who  are  en- 
titled to  act  as  delegates  in  the  convention. 
Upon  their  report  having  been  acted  upon  by 
the  convention,  the  convention  is  ready  for 
its  permanent  organization,  which  is  effected 
by  the  election  of  the  regular  permanent 
officials. 

The  principal  work  of  all  political  conven- 
tions is  the  nomination  of  the  party  candi- 
dates for  various  offices,  and  the  election  of 
delegates  to  higher  conventions.  In  national 
conventions  the  nominations  are  made  by  a 
roll  call  of  the  States,  and  in  State  conven- 
tions generally  by  a  roll  call  of  the  counties. 
Nominations  are  sometimes  made  by  acclama- 
tion and  sometimes  by  written  ballots.  A 
candidate  must  always  receive  a  majority 
vote  in  order  to  be  nominated. 

National  conventions  always,  State  con- 
ventions almost  always,  and  other  conven- 
tions very  rarely,  adopt  political  platforms 
which  are  official  statements  of  the  position 
and  views  of  the  party  on  pending  political 


POLITICAL  PARTIES  71 

issues.  These  platforms  are  adopted  by  the 
convention  before  the  nomination  of  the 
candidates. 

The  final  duty  of  political  conventions  is 
the  election  of  campaign  committees. 

Section  20.    Control  of  the  Courts  Over  Political 
Conventions 

The  importance  of  the  political  convention 
during  a  long  period  in  the  history  of  the 
United  States  has  compelled  the  Legislature 
and  courts  to  assume  a  certain  degree  of  con- 
trol over  such  conventions.  While  political 
conventions  are  primarily  under  the  control 
of  the  committees  of  the  political  parties, 
nevertheless,  statutory  requirements  regu- 
lating the  same  are  legal  and  binding,  unless 
they  are  of  such  a  character  as  to  violate  the 
constitutional  guarantees  of  freedom  of  elec- 
tion, or  freedom  of  speech  and  assemblage.^ 
Among  the  statutory  provisions  relative  to 
political  conventions  which  have  been  upheld 
are  ones  regulating  who  should  call  the  con- 
vention to  order,'-  administer  the  oath  to  the 
temporary  chairman,^  and  call  the  roll.^ 

The  powers  of  a  convention  are  of  a  tem- 
porary and  limited  character.^  The  power 
of  a  convention  is  over  when  the  nominations 
have  been  made  and  the  certificates  filed.^ 


72  ELECTlOiX   LAWS 

Vacancies  caused  by  the  declination  of  can- 
didates are  filled  by  the  proper  political 
committees." 

A  majority  of  the  delegates  in  a  political 
convention  have  the  full  right  to  control  the 
convention,  and  may  adopt  any  legal  methods 
to  carry  out  the  business  so  as  to  give  etfect 
to  the  will  of  the  majority.^  Thus  it  has  been 
held  that  when  a  combination  of  legal  and 
illegal  delegates  by  unlawful  means  deprive 
the  majority  of  the  legal  delegates  of  their 
right  to  organize  the  convention,  the  majority 
members  may  proceed  to  organize  the  con- 
vention either  in  the  hall  or  elsewhere. '-* 

A  majority  of  the  delegates  voting  is  suf- 
ficient to  control  the  convention  ;^'^  the  legal- 
ity of  the  work  of  the  convention  cannot  be 
defeated  by  the  action  of  delegates  in  sitting 
silent  while  a  vote  is  being  taken,  or  by  dele- 
gates withdrawing  after  the  balloting  is  com- 
pleted.^^ This  is  true  even  although  the 
delegates  who  withdrew  constitute  a  majority 
of  the  members  of  the  convention,  and  unite 
with  rejected  delegates  to  hold  another  con- 
vention.^- 

A  convention,  legal  and  regular  for  one 
purpose  is  legal  and  regular  for  all  pur- 
poses.^-^ 

The  decision  of  the  central  organization  of 


POLITICAL  PARTIES  73 

a  political  party  as  to  which  is  the  legal  con- 
vention of  the  party  is  generally  binding 
upon  the  courts. 

Notes 

1.  State  vs.  Junkin  (Neb.)  122  N.  W. 
Rep.  473. 

2.  In  re  Thomas,  128  App.  Div.  330,  122 
N.  Y.  Siipp.  664. 

3.  In  re  Byrne,  128  App.  Div.  334,  122 
N.  Y.  Supp.  699. 

4.  Id. 

5.  In  re  Greene,  121  App.  Div.  693,  106 
N.  Y.  Supp.  425. 

6.  In  re  Greene,  121  App.  Div.  693,  106 
N.  Y.  Supp.  425;  State  vs.  Benton,  13  Mont. 
306,  34  Pac.  301. 

7.  Id. 

8.  Wallace  vs.  Lansdon  (Idaho),  97  Pac. 
Rep.  396. 

9.  Id. 

10.  State  vs.  Porter,  11  N.  D.  309. 

11.  Id. 

12.  Id. 

13.  State  vs.  Lmdahl,  11  N.  D.  320. 

14.  Rose  vs.  Bennett  (R.  I.),  56  Atl.  Rep. 
185;  State  vs.  Lindahl,  11  N.  D.  320. 


CHAPTER  V 

PRIMARY  ELECTION  LAWS 

Section  21.    General  Right  to  Pass  Primary 
Election  Laws 

That  the  State  Legislatures  have  the  gen-- 
eral  power  to  pass  reasonable  primary  laws 
is  now  well  settled.^  "Primary  elections,  as 
they  in  fact  exist,  are  so  far  matters  of  public 
concern  that  they  are  proper  objects  of  legis- 
lative oversight. ' '  - 

A  primary  election  law  may  provide  for  the 
nomination  of  candidates  by  direct  vote  of 
the  members  of  the  various  political  parties, 
or  it  may  provide  for  the  making  of  nomina- 
tions by  conventions.  The  primary  laws 
whose  constitutionality  has  been  questioned 
in  the  courts  have  been  almost  invariably 
those  of  the  first  class.  A  primary  law  may 
also  make  provisions  as  to  the  organization 
and  government  of  a  political  party,  and  as 
to  who  shall  l)e  entitled  to  vote  in  the  pri- 
maries of  a  political  party. 

When  a  direct  primary  law  is  adopted  by 
a  State,  the  previously  existing  laws  govern- 
ing party  organizations,  political  committees, 
conventions,  etc.,  remain  in  force,  except  such 

74 


PRIMAKY  ELECTION  LAWS  75 

parts  of  the  laws  as  are  repealed  by  the  new 
law,  either  expressly  or  by  necessary  impli- 
cation. 

Notes 

1.  People  ex  rel.  Breckon  vs.  Board  of 
Election  Commissioners,  221  111.  9 ;  Dapper 
vs.  Smith,  138  Mich.  104,  101  N.  W.  Rep.  60; 
Leonard  vs.  Conn.,  112  Pa.  St.  622.  But, 
contra,  Britton  vs.  Election  Commissioners, 
129  Cal.  337. 

2.  Hopper  vs.  Stack,  69  N.  J.  L.  569,  58 
Atl.  Rep.  1. 

Section   22.     Cases   Where   Particular   Primary 

Election  Laws  Have  Been  Declared 

Constitutional 

In  Hopper  vs.  Stack,^  a  provision  of  the 
New  Jersey  law  that  a  primary  voter,  if 
challenged,  must  make  affidavit  that  at  the 
last  general  election  he  voted  for  a  majority 
of  the  candidates  of  the  party,  at  whose 
primary  he  seeks  to  vote,  was  held  consti- 
tutional. 

Statutes  limiting  the  operation  of  the  pri- 
mary election  laws  to  the  two  largest  parties 
in  the  State,  or  to  those  parties  which  poll  a 
certain  per  cent  of  the  total  vote  of  the  State, 
have  been  upheld  in  a  number  of  decisions.- 

In  State  vs.  Moore,^  a  provision  of  the  Min- 
nesota election  laws,  which  prohibited  an  un- 


76  ELECTION  LAWS 

successfnl  candidal c  for  nomination  for  a 
certain  office  at  the  primaries  of*  one  of  the 
political  parties  from  having  his  name 
printed  on  the  election  ballot  as  an  indepen- 
dent, was  ui)held. 

A  primary  election  law  is  not  unconstitu- 
tional because  a  voter  who  votes  at  a  pri- 
mary held  to  nominate  candidates  for  a  cer- 
tain election  is  prohil)ited  from  signing  the 
petition  of  another  candidate  for  the  same 
election,  either  an  independent  or  one  belong- 
ing to  another  political  jiarty.* 

A  law  is  not  unconstitutional  on  account  of 
its  unreasonableness,  because  under  its  pro- 
visions a  voter  who  changes  his  party  affil- 
iations between  registration  and  primary 
day  will  thereby  lose  his  right  to  vote  at  the 
primary  election  of  either  party;'  nor  is  a 
law  unconstitutional  because  voters  are  re- 
quired to  declare  their  political  affiliation 
with  a  certain  political  ])arty  and  })romise  to 
sui)port  its  candidates  at  the  election  before 
being  permitted  to  vote  at  the  primary  elec- 
tion of  such  party. *^ 

A  primary  election  law  is  not  an  infringe- 
ment of  the  elective  franchise  because  it  pre- 
scribes an  exclusive  method  of  making  nomi- 
nations ;  the  right  to  vote  not  being  a  natural 
right,  and  being  subject  in  all  respects  to  the 


PEIMAEY  ELECTION  LAWS  77 

control  of  the  Legislature  in  each  State,  ex- 
cept as  the  })Ower  of  the  Legislature  is  lim- 
ited by«constitutional  jorovisions,  either  Fed- 
eral or  State. 

The  requirement  that  candidates  for  nomi- 
nation for  any  office  shall  ))e  obliged  to  pay  a 
reasonable  fee,  to  be  used  towards  defraying 
the  expenses  of  the  primary  election,  has  been 
upheld  in  a  number  of  decisions."^ 

The  cases  already  cited  in  this  section  show 
the  great  extent  of  the  control  which  the 
State  may  exercise  over  primary  elections ; 
on  the  other  hand,  the  State  may,  if  it  deems 
proper,  allow  each  political  party  to  pre- 
scribe the  time,  manner  and  conditions  of 
election,  and  the  qualifications  of  party 
voters.  The  present  tendency  is  strongly  in 
the  direction  of  greater  control  of  primary 
elections  by  the  State. 

Notes 

1.  69  N.  J.  L.  562. 

2.  Kennenviw  vs.  Allegany  County,  102 
Md.  110;  State  vs.  Drexel,  105  N.  W.  Kep. 
174   (Neb.) 

3.  87  Minn.  808. 

4.  Katz  vs.  Fitzgerald,  152  Cal.  433,  93 
Pae.  Rep.  112. 

5.  Schastag   vs.   Cator,    151   Cal.   600,   91 


78  ELECTION  LAWS 

Pac.  Rep.  502. 

6.  Id. 

7.  State  vs.  Scott,  108  N.  W.  Rep.  828 
(Minn.)  ;  Kennewig  vs.  Allegany  County,  102 
Md.  119,  62  Atl.  Rep.  249;  Montgomery  vs. 
Chelf,  118  Ky.  766.  82  S.  AV.  Rep.  388.' 

Section   23.      Cases   Where   Particular   Primary 

Election  Laws  Have  Been  Declared 

Unconstitutional 

Primary  election  laws  have  been  more  se- 
verely handled  by  the  courts  in  Illinois  than 
in  any  other  State  in  the  country. 

In  People  ex  rel  Breckon  vs.  Board  of 
Election  Commissioners  of  Chicago,^  the  Illi- 
nois Direct  Primary  Act  of  May  18,  1905,  was 
declared  unconstitutional  for  the  following 
reasons : 

(1)  The  statute  contained  an  unconstitu- 
tional delegation  of  legislative  power  in  the 
provision  which  gave  to  the  county  central 
committee  of  each  political  party  the  right 
to  determine  whether  county  candidates 
should  be  nominated  by  conventions  or  by 
direct  primaries,  and  if  they  were  to  be  nomi- 
nated by  direct  primaries,  whether  a  ma- 
jority vote  or  a  plurality  vote  should  be 
required  for  a  nomination. 

(2)  The  statute  violated  Article  IV,  Sec- 
tion 13  of  the  Illinois  Constitution,  by  amend- 


PEIMAEY  ELECTION  LAWS  79 

ing   the   Illinois   Primary   Election   Act   by 
reference  to  its  title  only. 

(3)  It  contained  provisions  as  to  the  coun- 
ties from  which  legislative  candidates  should 
come,  thus  imposing  qualifications  for  office 
beyond  those  fixed  by  the  Illinois  Constitu- 
tion. 

(4)  It  provided  one  system  of  primary 
elections  for  one  county  in  the  State,  and 
another  system  for  the  other  counties,  and 
thus  violated  the  Constitutional  guarantee 
that  all  elections  should  be  free  and  equal. 

(5)  The  provisions  as  to  the  fees  to  be 
paid  by  candidates  bore  no  relation  to  the 
service  to  be  rendered  and  the  rights  both  of 
candidates  and  of  voters. 

The  Direct  Primary  Act  of  July  1,  1906, 
was  declared  unconstitutional  in  the  case  of 
Eouse  vs.  Thompson.-  The  provisions  au- 
thorizing primary  elections  to  select  candi- 
dates of  the  several  political  parties  to  be 
voted  for  in  political  conventions,  were  held 
not  to  be  within  the  scope  of  the  title  of  this 
Act,  which  was:  ''An  act  to  provide  for  the 
holding  and  regulating  of  primary  elections 
of  delegates  to  nominating  conventions,  for 
the  holding  of  such  conventions,  filling  vacan- 
cies and  fixing  penalties  for  the  violation  of 
the  provisions  thercci'. " 

Sections  2  and  3  of  the  Act,  which  author-^ 


80  ELECTlUA'  LAWS 

izod  the  County  Central  Committees  of  the 
different  ijarties  to  designate  election  dis- 
tricts, were  held  to  contain  an  unconstitu- 
tional delegation  of  power. 

Section  59,  which  authorized  political  com- 
mittees to  select  the  candidates  of  the  various 
parties  in  the  case  of  special  elections  was 
held  (when  compared  to  the  ]>rocedure  pro- 
vided for  in  the  case  of  general  elections)  to 
be  in  violation  of  the  i^rovision  of  the  Illinois 
Constitution  that  all  elections  should  be  free 
and  equal. 

Another  ground  upon  which  the  statute  was 
declared  unconstitutional  was,  that  legally 
qualified  voters  would  be  deprived  of  the 
right  to  vote  at  every  primary  on  account  of 
the  fact  that  neither  was  a  registration  pro- 
vided for  within  thirty  days  of  the  date  of 
the  primary  election,  nor  was  any  provision 
made  by  which  a  voter,  entitled  to  vote  under 
the  riHnois  Constitution,  but  not  registered, 
could  swear  in  his  vote. 

A  final  ground  of  objection  to  the  bill  was 
found  in  the  provision  that  only  one  candi- 
date for  representative  to  the  Legislature 
could  be  nominated  in  each  senatorial  district 
by  any  party ;  thus  taking  away  from  the 
voter  his  right  to  vote  for  three  candidates. 

The  provisions  of  this  statute  which  lim- 
ited the  right  of  participation  in  a  primarjr 


PKIMARY   ELECTION  LAWS  81 

election  of  a  party  to  those  who  had  not 
voted  at  the  primary  election  of  anotlier 
party,  or  signed  the  nomination  petition  of 
the  candidate  of  another  party,  within  one 
year  prior  to  the  primary  which  the  voter 
seeks  to  participate  in,  and  who  will  declare 
their  political  affiliations,  were  held  consti- 
tutional. 

The  Direct  Primary  Act  of  1908  was  held 
to  be  unconstitutional  in  the  case  of  People 
vs.  Strassheim.'^ 

This  Act  was  held  void  for  the  following 
reasons : 

(1)  No  ])roper  provisions  were  made  for 
registration  for  the  date  of  primary  elections. 
This  not  only  illegally  deprived  certain  voters 
of  the  right  to  vote,  but,  as  registration  was 
required  in  some  portions  of  the  State  and 
not  in  others,  the  law  as  it  stood  violated  the 
constitutional  guarantee  that  all  elections 
should  be  free  and  equal. 

(2)  Voters,  in  voting  for  representatives 
to  the  Legislature,  were  deprived  of  their 
right  to  either  cumulate  their  votes  or  to 
vote  for  more  than  one  person  at  their  own 

«P^i^"-  Notes 

1.  221  111.  9. 

2.  228  111.  522,  81  N.  E.  1109. 

3.  240  111.  179,   88   N.   E.   Rep.   821. 


CHAPTER  VI 
CONDUCT  OF  ELECTIONS 

Section  24.    Calling  Elections. 

In  order  to  render  an  election  valid  it  must 
not  only  be  authorized  by  law,  but  must  be 
called  by  officials  authorized  by  law  to  call 
the  election.^  It  is  sufficient,  however,  if  the 
officer  who  calls  the  election  is  a  de  facto 
officer.  The  official  in  calling  the  election 
must  always  observe  the  method,  if  any,  pre- 
scribed by  law  for  calling  the  election,  or  such 
election  will  be  void.-  When,  however,  all 
the  details  of  this  election,  including  the  time 
and  place  of  holding  it,  are  fixed  by  statute, 
the  election  will  not  be  invalid  because  no 
notice  or  proclamation  relative  to  the  election 
was  issued.^ 

Again,  while  in  some  States  the  statutes 
require  the  county  judge  or  some  other  judi- 
cial official  to  issue  writs  of  election,  the  mere 
fact  that  such  writs  were  not  issued  will  not 
render  the  election  void.^  Even  in  the  case 
of  special  elections,  or  elections  to  fill  vacan- 
cies, while  a  notice  is  invariably  required  to 

82 


CONDUCT  OF  ELECTIONS  83 

be  issued,  still,  if  there  is  no  notice  or  procla- 
mation made,  but  if  the  size  of  the  vote  shows 
that  the  voters  had  general  knowledge  of  the 
election,  the  election  will  be  upheld.^  Where 
the  statute  requires  a  certain  number  of  days ' 
notice  to  be  given  of  the  election  or  desig- 
nates what  facts  shall  be  set  out  in  the  notice, 
these  provisions  should  be  complied  with,  but 
a  substantial  compliance  with  the  statute  is 
sufficient.*^ 

The  statutes  generally  require  that  notices 
as  to  elections  shall  be  published  in  a  news- 
paper or  newspapers  or  posted  in  a  certain 
number  of  public  places,  or  both.  Only  such 
publication  or  posting  as  the  statute  requires 
is  necessary;  and  a  substantial  compliance 
with  such  statutory  requirements  is  suf- 
ficient." 

Defects  or  neglect  in  the  posting  or  publi- 
cation of  the  notices  will  not  render  the  elec- 
tion void  where  the  defects  were  immaterial 
and  did  not  affect  the  result.^ 

Notes 

1.  Clarke  vs.  Harrcock  County,  27  111.  305 ; 
Stephens  vs.  People,  89  111.  337 ;  State  vs. 
Buck,  13  Neb.  273. 

2.  McHam  vs.  Conuell  (Tex.  App.),  15  S. 
W.  Rep.  284. 


84  ELECTION  LAWS 

3.  Stephens  vs.  People.  89  111.  337;  Jones 
vs.  Gridley,  20  Kan.  584. 

4.  Ex   parte   Schilling    (Tex.   Crim.   App., 
1897),  42  S.  W.  Rep.  553. 

5.  Ellis  vs.  Karl.   7  \eb.  381;   Adsit  vs. 
Osmun,  84  ]\Iich.  420. 

6.  Chicago,   etc..   R.   Co.   vs.  Piekney,   74 
111.  277 ;  Tillson  vs.  Ford,  53  Cal.  701. 

7.  Seymour  vs.  Tacoma,  6  AYash.  427. 

8.  People  vs.  Avery,  102  Mich.  572. 

Section  25.    Election  Officers 

The  numbers,  titles  and  qualifications  and 
method  of  appointment  of  election  officers  are 
regulated  by  statute  and  differ  greatly  in  the 
different  states,  F]lection  officers  are  very 
seldom  elected,  and  are  generally  appointed 
l)y  some  of  the  executive  officers  of  the  gov- 
ernment. In  some  States,  however,  the  stat- 
ute provides  that  the  election  officer  shall  be 
appointed  by  the  judge  of  some  court,  and 
such  statutes  have  been  held  to  be  constitu- 
tional, although  they  confer  non-judicial 
powers  upon  a  judge. ^ 

Various  qualifications  are  prescribed  in 
the  several  States  for  election  officers.  It  is 
generally  provided  that  such  officials  must 
be  citizens  and  residents  of  the  election  dis- 
trict in  which  they  serve,  and  able  to  read 
and  write.     In  some  States,  however,  an  elec- 


CONDUCT  OF  ELECTIONS  85 

tion  official  can  serve  in  a  different  precinct 
from  that  in  which  he  lives.  Other  qualifica- 
tions are  found  in  different  States. 

In  Illinois  the  judges  of  election  must  be 
"householders";  but  no  such  requirement  is 
made  as  to  the  clerks  of  election.  It  is  nearly 
everywhere  provided  that  the  election  officers 
at  each  voting  place  shall  contain  representa- 
tives from  the  two  leading  political  parties. 

Election  officers  are  not  judicial  officers 
when  deciding  upon  the  questions  of  receiv- 
ing or  rejecting  votes ;  they  act  in  a  minis- 
terial, or,  at  most,  in  a  quasi-judicial  char- 
acter.- Not  being  judicial  officers,  election 
officials  are  liable  to  an  action  for  damages 
for  illegally  refusing  to  receive  a  vote.-'* 
Election  officials  may  also  be  liable  criminally 
when  they  wilfullly  reject  a  legal  vote  or 
accept  an  illegal  one.  The  action  of  election 
officers  in  receiving  or  rejecting  votes  is,  of 
course,  always  open  to  review  in  any  election 
contest  before  a  court  or  legislative  body. 

Notes 

1.  People  vs.  Hoffman,  116  111.  587;  Ex 
parte  Siebold,  100  U.  S.  331. 

2.  Biddle  vs.  Wing,  CI.  &  H.  El.  Cas.  504. 

3.  See  Section  3. 


36  ELECTION  LAWS 

Section  26.    Time  of  Holding  Election 

Statute  i)rovisions  providing  the  time  at 
which  the  election  shall  be  held  are  manda- 
tory and  not  directory,  and  an  election  held 
at  some  other  time  will  be  void.^  An  election 
held  at  the  wrong  time,  even  with  the  consent 
of  all  the  voters,  will  be  void.- 

A  majority  can  not  change  the  time  of 
election  against  the  will  of  the  minority.^ 

Thns,  in  People  vs.  Brewer,'*  where,  upon 
the  day  fixed  for  an  election  of  a  school  trus- 
tee, a  majority  of  the  voters  organized  and, 
against  the  will  of  the  minority,  adjourned 
the  election  to  a  future  day,  it  was  held  that 
an  organization  and  election  by  the  voters 
remaining  was  legal,  and  also  that  where  a 
majority  attempts  to  adjourn  an  election 
without  day,  the  minority  may  organize  on 
the  proper  day  and  hold  the  election. 

There  must  be  some  definite  time  legally 
fixed  for  holding  an  election,  otherwise  the 
election  will  be  void.  In  Toney  vs.  Harris," 
the  court  said : 

*'To  make  the  election  of  an  oflScer  of  gov- 
ernment legal,  there  must  be  a  time  fixed  for 
holding  such  election,  either  by  law  or  by  the 
officer  empowered  by  law  to  do  so.  If  it  was 
not  so,  there  could  be  neither  a  fair,  orderly, 
or  free  expression  of  the  popular  choice.     If 


CONDUCT  OF  ELECTIONS  87 

one  candidate  for  an  office  and  his  friends 
may,  without  authority  of  law,  prescribe  the 
time  for  holding  an  election  to  fill  a  vacancy, 
his  opponent  may  as  well  fix  another  and 
different  time.  For  neither  by  the  constitu- 
tion nor  statute  is  the  first  Monday  in  August 
prescribed  as  the  day  in  course  for  holding 
an  election  to  fill  a  vacancy  in  the  office  of 
judge  of  the  circuit  or  other  courts  of  the 
same  class,  and  such  election,  therefore,  can 
be  legally  held  on  that  day  only  when  ap- 
pointed by  a  writ  of  election.  To  sanction 
an  election  held  without  lawful  authority  is 
to  countenance  confusion,  tumult  and  unfair- 
ness." 

If  the  Constitution  fixes  the  date  for  an 
election,  such  date  cannot  be  changed  by  the 
Legislature.*^  The  Constitution  or  laws  of 
the  States  sometimes  give  to  some  State  or 
local  officer  or  board  the  power  to  fix  the  date 
of  an  election.  In  such  cases,  if  the  power  is 
exercised  in  the  proper  manner,  the  election 
will  be  valid. 

Notes 

1.  Stephen  vs.  People,  89  111.  337;  Field 
vs.  Hall  (Texas),  40  S.  W.  789. 

2.  State  vs.  Winter,  141  Ind.  177. 

3.  State  vs.  Collins,  2  Nev.  351. 


88  ELECTION  LAWS 

4.  20  111.  474;  American  and  Englisli  En- 
cyclopedia of  Law,  ]).  tiTD. 

5.  85  Ky.  453. 

6.  Smith  vs.  Askew,  48  Ark.  82. 

Section  27.    Place  of  Holding  an  Election 

In  order  for  an  election  to  be  legal  the 
place  of  voting  must  be  definitely  fixed  before 
the  balloting  begins. 

In  Williams  vs.  Porter,^  where  a  statute 
required  the  polling  places,  when  more  than 
one  was  demanded  by  the  excess  of  the  num- 
ber of  voters  over  those  voting  at  the  last 
preceding  general  election,  to  be  fixed  by  the 
county  board,  and  it  appeared  that  a  school- 
house,  where  certain  votes  were  cast  at  an 
election,  had  not  been  designated  or  ap- 
pointed by  the  county  board  as  a  polling  place, 
it  was  held  that  such  votes  could  not  be 
counted.  Tt  was  said  :  *  'A  number  of  voters 
of  the  township  assemble  at  a  place  unauthor- 
ized by  law,  organize,  and  hold  an  election  for 
town  officers,  and  the  question  is,  shall  the 
votes  cast  at  such  election  be  counted  ?  .  .  . 
It  is  clear,  U])on  the  plainest  principles  of 
law,  they  cannot  bo  so  counted.  The  whole 
thing,  however  well  intended,  was,  in  contem- 
plation of  law,  illegal  and  void." 

AVlien  a  place  has  been  fixed  the  election 


CONDUCT  OF  ELECTIONS  89 

must  be  held  at  this  place,  but  if  it  becomes 
impossible  to  hold  the  election  at  the  place 
designated  and  the  polling  place  is  moved  to 
some  other  place  in  the  immediate  vicinity, 
and  the  voters  notified  of  the  change,  in  the 
absence  of  fraud  the  election  will  be  upheld.- 
The  statute  of  each  State  prescribed  what 
officer  or  body  shall  have  the  power  to  divide 
the  State  into  voting  precincts  and  fixes  the 
polling  places  in  each  precinct. 

Notes 

1.  114  111.  628.    But  contra  Steele  vs.  Cal- 
houn, 61  Mass.  556. 

2.  Dale  vs.  Irwin,  78  111.  170. 

Section  28.    Voting 

Voting  in  this  country  is  now  everywhere 
by  ballot,  and  almost  everywhere  under  some 
form  of  the  Australian  Ballot  System,  except 
in  places  where  voting  by  voting  ma- 
chines has  been  introduced.  The  Australian 
Ballot  System  is  treated  in  the  next  chapter 
of  this  book,  and  voting  machines  in  the  suc- 
ceeding one. 

The  voter  in  voting  is  entitled  to  secrecy, 
but  under  certain  circumstances,  if  he  is  un- 
able to  mark  his  ballot  himself  he  may  have 
the  assistance  of  some  of  the  election  officials. 
Physical   incapacity  to   mark  his   ballot  on 


90  ELECTION  LAWS 

account  of  blindness,  loss  of  hands,  or  other 
causes,  will  always  entitle  the  voter  to  such 
assistance.  Inability  to  read  entitles  the 
voter  to  assistance  except  in  those  States 
having  educational  qualifications. 

The  manner  of  rendering  assistance  in  such 
cases,  and  the  official  by  whom  it  shall  be 
rendered,  are  designated  by  statute.  It  is 
generally  provided  that  two  election  officials, 
one  from  each  of  the  two  leading  political 
parties  must  give  such  assistance  together. 

A  voter  who  is  rendered  assistance  in 
marking  his  ballot  is  entitled  to  as  great  a 
degree  of  secrecy  as  is  possible  under  the 
circumstances;  the  officers  who  assist  him 
have  no  right  to  divulge  how  he  votes. 


CHAPTER  VII 

AUSTRALIAN  BALLOT  SYSTEM 

Section  29.    History  of  the  Australian  Ballot 
System 

The  Australian  ballot  system,  which  in 
some  form  or  another  is  now  in  force 
throughout  the  United  States,  derives  its 
name  from  the  fact  that  it  was  first  put  into 
operation  in  Australia.^  Such  a  system  of 
voting  was  first  proposed  in  the  Legislature 
of  South  Australia  by  Francis  S.  Dutton  in 
1851,  and  became  a  law,  under  the  title  of 
the  Elections  Act,  in  1857.  In  the  next  fif- 
teen years  this  system  of  voting  was  adopted 
by  all  the  other  Australian  colonies  and  by 
New  Zealand. 

By  Act  of  May  30,  1872,  the  Australian 
ballot  was  adopted  for  parliamentary  elec- 
tions in  England;  and  this  system  was  next 
adopted  in  Belgium  in  1877,  by  Luxumberg  in 
1879,  by  Italy  in  1882,  and  by  Norway  in 
1884. 

The  first  law  providing  for  the  adoption  of 
the  Australian  ballot  in  the  United  States 

91 


92  ELECTION  LAWS 

was  that  of  February  24,  1888,  which  pre- 
scribed this  method  of  voting  for  municipal 
elections  in  Louisville,  Kentucky,  although 
some  features  of  the  Australian  ballot  had 
been  copied  in  a  statute  of  Wisconsin,  gov- 
erning elections  in  cities  of  over  50,000  popu- 
lation, passed  in  1887. 

In  1888  the  Legislature  of  New  York 
passed  the  Yates-Saxton  Act  for  the  adop- 
tion of  the  Australian  ballot  system,  but  the 
bill  was  vetoed  by  Governor  David  B.  Hill. 

Massachusetts  was  the  first  State  to  adopt 
the  principles  of  the  Australian  ballot  for 
general  elections ;  the  bill  which  accomplished 
this  being  signed  by  the  Governor  May  30, 
1888.-  Within  the  next  seven  years  every 
State  in  the  country  had  followed  the  ex- 
ample of  Massachusetts  except  Georgia, 
Louisiana,  North  Carolina  and  South  Caro- 
lina. Great  differences  as  to  details  are 
found  in  the  laws  of  the  different  States. 

Notes 

1.  It  was  claimed  during  the  hearing  be- 
fore the  British  Parliamentary  Committee  in 
1869,  that  this  system  was  copied  from  the 
system  of  voting  which  had  been  adopted  in 
the  town  of  iMaryport  in  Cumberland  (Eng- 
land). 

2.  It  is  interesting  to  note  that  a  similar 


AUSTBALIAN   BALLOT   SYSTEM  93 

method  of  conducting  elections  had  been  ad- 
vocated in  this  State  by  the  "Know-Nothing" 
Party  in  1850-51. 

Section  30.     General   Characteristic  of  the 
Australian  Ballot  System 

The  two  great  features  of  the  Australian 
ballot  system  are  the  furnishing  of  the  bal- 
lots by  the  government  and  secrecy  of  voting. 

''The  essential  feature  of  the  plan  is  that 
all  candidates  in  the  field  for  any  office  shall 
be  placed  on  one  ballot,  and  the  voter  com- 
pelled to  indicate  his  preference  by  a  mark 
against  one ;  thus  forcing  him  to  think  per- 
sonally concerning  each  one,  inviting  to  inde- 
pendence of  judgment,  breaking  down  the 
tyranny  of  the  party  vote,  and  putting  some 
intelligence  into  the  'brute  vote'  even  though 
the  name  of  the  party  of  each  candidate  is 
added."  1 

The  Australian  ballot  is  supposed  to  accom- 
plish two  great  results:  (1)  Prevent  the 
intimidation  of  the  honest  voter;  and  (2) 
decrease  bribery  in  elections  by  rendering  it 
impossible  to  be  known  whether  the  voter 
who  has  sold  his  vote  actually  votes  the  way 
he  has  been  bribed  to  vote. 

Note 

1.     Americana,  Volume  II. 


94  ELECTION  LAWS 

Section  31.    Form  of  the  Australian  Ballot 

Two  general  forms  of  the  Australian  bal- 
lot are  to  be  found  in  this  country.  The  first 
American  law  passed  on  this  subject  (that 
of  Massachusetts)  provided  that  the  candi- 
dates for  office  should  be  grouped  according 
to  the  office  for  which  they  were  candidates, 
and  the  names  of  the  candidates  in  each  group 
arranged  alphabetically.  Under  this  form  of 
the  ballot  it  is  not  possible  to  A^ote  a  straight 
party  ticket  by  making  a  single  cross.  This 
form  of  the  ballot  carries  out  the  idea  of  the 
Australian  ballot  to  the  extreme,  and 
although  the  example  of  Massachusetts  has 
been  followed  by  some  States,  this  is  further 
than  most  States  seem  willing  to  go.  The 
most  common  form  of  the  Australian  ballot 
is  the  one  where  the  names  of  the  candidates 
are  arranged  in  party  columns,  and  which 
permits  a  voter  to  vote  the  straight  ticket  of 
his  party  by  putting  a  cross  in  the  "circle" 
at  the  head  of  the  column.  Under  some  of 
the  earlier  Australian  ballot  laws  the  names 
of  the  candidates  of  the  different  parties  were 
printed  on  separate  ballots,  all  to  be  fur- 
nished by  the  State.  Such  a  law  can  hardly 
be  said  to  provide  for  the  true  Australian 
ballot  system. 

In  some   States   a   special   distinguishing 


AUSTRALIAN  BALLOT  SYSTEM  95 

party  device  or  emblem  is  printed  at  the  head 
of  each  party  column,  in  other  States  this  is 
lacking.  In  some  States  the  cross  must  be 
placed  at  the  left  of  the  names  of  the  candi- 
dates for  whom  the  voter  votes,  and  in  other 
States  at  the  right  of  such  names. 

The  general  characteristics  of  the  two  kinds 
of  Australian  ballots  will  be  seen  from  the 
following  samples  of  ballots  used  in  Massa- 
chusetts and  in  Illinois : 

(Form  of  Massachusetts  Ballot)   (1) 

OFFICIAL    BALLOT    FOR    PRECINCT    ONE, 

WARD    ONE    OF    CAMBRIDGE,    8TH 

NOVEMBER,  1887 

For  Governor 

VOTE  FOE  ONE 

Oliver  Ames  of  Easton 

Eepublican 

William  Earle  of  Worcester 

Prohibition 

Henry  B.  Levering  of  Lynn 

Democrat 

For  Lieutenant-Governor 

VOTE  FOR  ONE 

John  Blackmer  of  Springfield 

Prohibition 

John  Q.  A.  Brackett  of  Arlington 

Eepublican 


96  KJ.E<  TIOX   I.AW8 

Walter  Cutting  of  Pittsfield 
Democrat 

For  Secretary  of  the  Commonwealth 

VOTE  FOR  ONE 

Amos  E.  Hall  of  Chelsea 

Prohibition 

John  F.  MuriDhy  of  Lowell 

Democrat 

Henry  B.  Peirce  of  Abington, 

Republican 

For  Treasurer  and  Receiver-General 

VOTE   FOE  OXE 

Alanson  W.  Beard  of  Boston 

Republican 

John  L.  Kilton  of  Lee 

Prohibition 

Henry  C.  Thacher  of  Yarmouth 

Democrat 

For  Auditor  of  Accounts 

VOTE  FOE  ONE 

William  F.  Cook  of  Springfield 

Democrat 
Charles  R.  Ladd  of  Springfield 

Republican 

Edmund  M.  Stone  of  Hudson 

Prohibition 


AUSTKALIAN  BALLOT  SYSTEM  97 

For  Attorney- General 

VOTE  FOR  ONE 

Allen  Coffin  of  Nantucket 

Prohibition 

John  W.  Corcoran  of  Clinton 

Democrat 

Andrew  J.  Waterman  of  Pittsfield 

Republican 

For  Executive  Councillor,  Third  District 

VOTE  FOR  ONE 

Robert  Luce  of  Somerville 

Democrat 

Ebenezor  N.  McPherson  of  Boston 

Republican 

John  S.  Paine  of  Cambridge 

Prohibition 

For  County  Commissioner 

VOTE  FOR  ONE 

Joseph  W.  Barber  of  Sherborn 

Prohibition 

J.  Henry  Read  of  Westford 

Republican 

James  Skinner  of  Woburn 

Democrat 

For  Senator,  Third  Middlesex  District 

VOTE  FOR  ONE 

George  W.  Gale  of  Cambridge 
Democrat 


98  ET>Er'TTON  LAWS 

Chester  W.  Kingsley  of  Cambridge 
Prohibition 

For  Representatives  to  the  General  Court, 
First  Middlesex  District 

VOTE  FOE  TWO 

Walter  H.  Marble  of  Cambridge 

Prohibition 

Isaac  McLean  of  Cambridge 

Democrat 

George  A.  Perkins  of  Cambridge 

Democrat 

John  Reed  of  Cambridge 

Democrat 

Chester  F.  Savage  of  Cambridge 

Republican 

"Will  A.  Start  of  Cambridge 

Prohibition 

Question  Submitted  to  the  Vote  of  the  People 

Shall  licenses  be  granted  for  the  sale 
of  Intoxicating  Liquors  in  this  city? 

Yes 

No 

The  following  form  is  prescribed  by  the 

Illinois  statutes: 

**As  nearly  as  practicable  the  ballot  shall 

be  in  the  following  form : 


AFSTEALIAN  BALLOT  SYSTEM 


99 


0    Republican 

For  Governor 
JOSEPH  W.  FTFER 

For  Lieutenant-Governor 
LYMAN  B.  RAY 

For  Secretary  of  State 
L.  N.  PEARSON 


0 


0 


Democratic 

For  Governor 

JOHN  M.  PALMER 

For  Lieutenant-Governor 
ARTHUR  J.  BELL 

For  Secretary  of  State 
NEWELL  1).  RICKS 

Prohibition 

For  Governor 
DAVID  H.  HARTS 

For  Lieutenant-Governor 
JOS.  L.  WHITLOCK 

For  Secretary  of  State 
JAMES  R.  HANNA 


(And  continning  in  like  manner  as  to  all  can- 
didates to  be  voted  for  at  such  election.) " 


]00  ELECTION  LAWS 

Notes 

1.     From    Wigmore's    "Australian    Ballot 

System." 

Section  32.    Constitutionality  of  Australian  Ballot 
System 

The  constitutionality  of  the  Australian  bal- 
lot system,  in  general,  is  now  well  established, 
having  been  upheld  by  a  long  line  of  de- 
cisions.^ 

In  Independence  Party  Nomination,^  how- 
ever, the  court  held:  "It  is  never  to  be 
overlooked  .  .  .  that  the  requirement  of 
the  use  of  an  official  ballot  is  a  questionable 
exercise  of  legislative  power  and  even  in  the 
most  favorable  view  treads  closely  on  the 
border  of  a  void  interference  with  the  indi- 
vidual elector.  Every  doubt,  therefore,  in 
the  construction  of  the  statute  must  be 
resolved  in  favor  of  the  elector." 

The  constitutionality  of  a  number  of  spe- 
cial provisions  in  Australian  ballot  laws  have 
been  passed  upon  by  the  courts. 

In  Oughton  vs.  Black^  the  provision  of  the 
law  allowing  voters  who  wish  to  vote  a 
straight  party  ticket  to  do  so  by  putting  a 
cross  in  the  circle  at  the  top  of  the  party 
column,  was  held  valid  and  not  in  violation 
of  the  provision  of  the  Pennsylvania  Consti- 


AUSTEALIAN  BALLOT  SYSTEM  IQl 

tution,  that  *' elections  shall  be  free  and 
equal. ' ' 

In  Cole  vs.  Tucker,^  it  was  decided  in  Mas- 
sachusetts that  a  provision  in  the  law  making 
it  compulsory  in  the  election  of  city  officers 
and  optional  in  the  election  of  town  officers, 
did  not  make  such  law  unconstitutional  as 
unequal  in  its  operation  upon  the  rights  of 
voters. 

Provisions  that  only  the  names  of  candi- 
dates of  parties  which  received  a  certain  per 
cent  of  the  votes  cast  at  the  last  general  elec- 
tion and  of  candidates  who  filed  independent 
petitions  signed  by  a  designated  number  of 
voters  shall  be  placed  upon  the  ballot,  is 
constitutional.^ 

A  statutory  provision,  which  prevents  a 
voter  from  writing  in,  on  the  official  ballot, 
the  name  of  a  candidate  for  whom  he  desires 
to  vote,  has  been  held  not  to  be  unconstitu- 
tional when  the  voter  had  the  same  right  as 
every  other  voter  to  secure,  or  to  aid  in 
securing,  the  printing  of  the  name  of  his 
candidate  upon  such  official  ballot.® 

But,  in  Rogers  vs.  Jacob,'^  it  was  held  that 
a  statute  requiring  each  voter  to  retire  to  a 
compartment  and  there,  alone  and  unaided, 
indicate  by  a  mark  on  his  ballot  the  various 
candidates  for  numerous  offices  he  wishes  to 


102  ELECTION  LAWS 

vote  for,  practically  operates  to  deprive  those 
unable  to  read  or  write  of  a  free  and  intelli- 
gent choice,  and  is  to  that  extent  invalid  on 
the  ground  that  illiterate  persons  have  the 
right  to  avail  themselves  of  whatever  reason- 
able aid  and  information  may  be  necessary 
to  enable  them  to  cast  their  ballots  under- 
standingly. 

In  Detroit  vs.  Rush,^  the  court  said:  "It 
is  objected  that  the  law  deprives  those  who 
cannot  read,  the  blind,  and  cripples  who  can- 
not walk,  of  the  opportunity  and  means  of 
voting.  If  such  were  the  effect,  the  law 
would  clearly  be  void,  for  they  are  given  this 
right  by  the  Constitution.  We  are  cited  to 
Rogers  vs.  Jacob,  88  Ky.,  502,  as  a  case  in 
point.  But  the  statute  there  under  consid- 
eration provided  that  the  voter  must  resort 
to  the  booth,  and  there,  'alone  and  unaided,' 
prepare  his  ballot.  It  is  contended  that 
under  the  act  in  question  the  result  is  the 
same,  because  no  one  is  permitted  to  accom- 
pany the  voter  to  the  booth  to  assist  him. 
It  is  to  be  regretted  that  the  Legislature  did 
not  expressly  provide  for  furnishing  ballots 
to  this  class  of  voters.  We  must,  therefore, 
carefully  examine  the  act  to  ascertain  if  it 
leaves  no  way  for  such  voters  to  obtain  bal- 
lots.    It  is  clear  that  if  voters  are  limited  to 


AUSTEALIAN  BALLOT  SYSTEM  103 

the  use  of  tickets  provided  in  the  booths,  then 
some  voters  are  disfranchised  by  the  very 
terms  of  the  law.  But  we  do  not  think  that 
the  law  necessarily  bears  that  construction. 
There  is  no  express  prohibition  against  as- 
sisting such  a  person  in  the  preparation  of 
his  ticket,  nor  against  his  obtaining  a  ticket 
outside  the  polling  place  for  that  purpose, 
nor  against  assisting  to  a  booth  or  the  polls 
one  physically  unable  to  go  alone.  Such  a 
case  is  not  within  the  mischief  aimed  at,  and 
we  hold  that  under  this  law  such  a  voter  is 
entitled  to  receive  assistance  in  the  prepara- 
tion of  his  ticket,  and  to  receive  and  have  his 
ticket  prepared  outside  the  polling  places. 
This,  we  think,  is  in  accord  with  that  maxim 
of  interpretation  that  a  thing  which  is  within 
the  spirit  of  a  statute  is  within  the  statute, 
although  not  with  the  intention. ' ' 

Notes 

1.  State  vs.  Boston,  59  Ohio  St.  122 ;  State 
vs.  McMillan,  108  Mo.  153;  Oughton  vs. 
Black,  212  Pa.  St.  1 ;  Taylor  vs.  Bleakley,  55 
Kan.  1 ;  Atty.  General  vs.  May,  99  Mich.  538 ; 
Detroit  vs.  Rush,  82  Llieh.  532. 

2.  208  Pa.  St.  108. 

3.  212  Pa.  St.  1 ;  Todd  vs.  Election  Comm., 
104  Mich.  481 ;  but  contra  Eaton  vs.  Brown, 
96   Cal.   365. 


104  ELECTION  LAWS 

4.  164  Mass.  486. 

5.  Miner  vs.  Olii,  159  Mass.  487. 

6.  Chamberlain  vs.  Wood,  155  Dak.  216. 

7.  88  Ky.  502.    Note  American  and  Eng- 
lish Annotated  Cases,  Vol.  IV,  p.  146. 

8.  82  Mich.  541. 

Section  33.    Effect  of  Irregularities  in  Preparing 
Official  Ballot  upon  the  Validity  of  Votes  Cast 

The  general  principle  of  law  is  that  inno- 
cent voters  should  not  ordinarily  be  deprived 
of  their  right  to  vote,  through  the  mistakes 
or  misconduct  of  the  officials  whose  duty  it  is 
to  prepare  the  official  ballots.^  This  is  true 
even  although  the  officials  may  themselves  be 
criminally  liable  for  their  actions  in  the 
matter.^ 

In  Blackmer  vs.  Hildreth^  the  court  said  on 
this  general  question : 

''This  must  be  borne  in  mind  in  the  con- 
struction of  such  statutes,  and  the  presump- 
tion is  that  they  are  enacted  to  prevent  fraud 
and  to  secure  freedom  of  choice,  and  not  by 
technical  obstructions  to  make  the  right  of 
voting  insecure.  The  provisions  above  cited 
with  reference  to  the  preparation  of  the  bal- 
lot are  plainly  limited  and  confined  to  that 
purpose.  They  are  binding  upon  the  officers 
for  whose  guidance  and  direction  they  are 


AUSTRALIAN  BALLOT  SYSTE:\r  105 

needed.  If  it  be  seasonably  objected  to  a 
nomination  paper  that  it  was  not  filed  within 
the  time  required  by  section  145,  or  that  the 
provisions  of  sections  141  and  142  have  not 
been  complied  with,  it  is  the  duty  of  the 
proper  board  to  inquire  into  and  settle  the 
question,  and  to  sustain  the  objection  if 
found  to  be  true,  and  reject  the  paper.  So 
far  as  respects  their  decision  these  provisions 
are  mandatory.  AVlien  the  decision  is  made 
it  is  final,  and  a  ballot  made  up  in  accordance 
therewith  is  not  thereby  made  illegal.  And 
in  the  same  way  the  action  of  the  town  clerk, 
at  least  in  the  absence  of  fraud  and  corrup- 
tion, as  to  the  papers  to  which  no  objection 
is  made,  must  be  regarded  as  final  so  far  as 
respects  the  ballot  which  he  prepares. 

"But  with  the  preparation  of  the  ballot, 
the  influence  of  these  provisions  ends.  If 
there  be  irregularities  like  those  in  this  case 
they  do  not  accompany  the  ballot  and  taint  it 
in  the  hands  of  the  voter.  This  view  of  the 
statute  gives  due  weight  and  scope  to  the  pro- 
visions in  question,  and  preserves  the  sanctity 
of  the  right  of  suffrage  and  its  free  and  hon- 
est exercise.  To  hold  otherwise  would  be  to 
lose  sight  of  the  purpose  for  which  these  pro- 
visions were  made,  namely,  to  provide  the 
method  and  time  for  the  preparation  of  the 


106  ELECTION  LAWS 

ballot,  and  would  subject  our  elections  to 
intolerable  and  perplexing  technicalities  in  no 
way  material  to  the  substantial  merits  of  the 
controversy  or  to  the  freedom  and  result  of 
the  action  of  the  voters.  Its  natural  tendency 
would  be  to  thwart  rather  than  to  secure  a 
true  expression  of  the  popular  will." 

The  improper  insertion  or  omission  of 
names  of  candidates  will  not  invalidate  the 
ballots  cast.^  The  same  rule  applies  in  the 
case  of  the  omission  of  a  party  emblem,  or 
the  insertion  of  a  prohibited  emblem.^ 

Irregularities  in  the  indorsement  of  ballots 
by  certain  designated  officials  have  also  been 
held  not  to  invalidate  the  ballots  cast.'' 

In  Dale  vs.  Irwin  •'  it  was  held  that  where 
case  where  a  county  clerk,  who  was  a  candi- 
date for  re-election,  fraudulently  caused  the 
names  of  certain  persons  to  be  illegally 
placed  upon  the  ballots  as  candidates,  bal- 
lots cast  could  not  be  counted  in  his  favor. 

Ballots  will  not  be  counted  where  the  ir- 
regularities are  such  as  by  statute  are  de- 
clared to  invalidate  the  ballot,  or  are  such 
as  serve  as  distinguishing  marks. ^ 

In  Dale  vs.  Irwin  "  it  was  held  that  where 
the  owner  of  the  building  where  a  polling 
place  had  been  located  refused  to  permit  the 
building  to  be  used  for  this  purpose  and  the 


ATTSTRALTAN  BALLOT  SYSTEM  107 

election  officials  moved  the  polls  to  another 
building  50  or  100  feet  away  and  the  election 
was  held  there  in  plain  sight  of  the  adver- 
tised polling  place,  that  the  election  was  not 
invalidated. 

Notes 

1.  Montgomery  vs.  Henry,  144  Ala.  629,  6 
Ann.  Cas.  965,  1  L.  R.  A.  N.  S.  656;  Smith  vs. 
Harris,  18  Colo.  274,  32  Pae.  Rep.  616 ;  State 
vs.  Saxon,  30  Fla.  668,  12  So.  Rep.  218,  18  L. 
R.  A.  721,  32  Am.  St.  Rep.  46 ;  see  Territory 
vs.  Kanealii,  17  Hawaii  243,  7  Ann.  Cas.  837 ; 
Baker  vs.  Scott,  4  Idaho  596,  43  Pac.  Rep.  76 ; 
:Murphy  vs.  Battle,  155  111.  182,  40  N.  E.  Rep. 
470;  Sehuler  vs.  Hogan,  168  111.  369,  48  N.  E. 
Rep.  195 ;  Perkins  vs.  Bertrand,  192  111.  58,  61 
N.  E.  Rep.  405,  85  Am.  St.  Rep.  315 ;  Rexroth 
vs.  Schein,  206  111.  80,  69  N.  E.  Rep.  240.  See 
also  Hodge  vs.  Linn,  100  111.  397;  Gill  vs. 
Shurtlegg,  183  111.  440,  56  N.  E.  Rep.  174. 
Compare  Harvey  vs.  Cook  County,  221  111. 
76,  77  N.  E.  Rep.  424 ;  Jones  vs.  State,  153  Ind. 
440,  55  N.  E.  Rep.  229,  74  Am.  St.  Rep.  305 ; 
Cook  vs.  Fisher,  100  Iowa  27,  69  N.  AV.  Rep. 
264;  Ogg  vs.  Glover,  72  Kan.  247,  83  Pac. 
Rep.  1039 ;  State  vs.  Norris,  37  Neb.  299,  55 
N.  W.  Rep.  1086 ;  Esquibel  vs.  Chaves,  12  N. 
Mex.  482,  78  Pae.  Rep.  505;  State  vs.  Millar 
(Okla.  1908),  96  Pac.  Rep.  830;  Kulp  vs. 
Railey,  99  Tex.  310,  89  S.  W.  Rep.  957. 


108  ELECTION  LAWS 

2.  Jones  vs.  State,  153  Ind.  440,  55  N.  E. 
Rep.  229. 

3.  181  Mass.  29,  63  N.  E.  Rep.  14. 

4.  Peabody  vs.  Nurcli  et  aL,  75  Kan.  543; 
Rexroth  vs.  Schein,  206  111.  80,  69  N.  E.  Rep. 
240;  State  vs.  Franshan,  19  Mont.  273,  48 
Pac,  Rep.  1. 

5.  Jones  vs.  State,  153  Ind.  440.  55  N.  E. 
Rep.  229. 

6.  Parvin  vs.  Winberg,  130  Ind.  561,  30  X. 
E.  Rep.  790 ;  Horning  vs.  Board  of  Canvassers, 
119  Mich.  51,  77  N.  W.  Rep.  446. 

7.  51  S.  W.  Rep.  428. 

8.  Cross  vs.  Keathly  (Tenn.),  105  S.  W. 
Rep.  854. 

9.   78  111.  no. 

Section  34.    Form  of  the  Cross 

All  the  Australian  ballot  laws  provide  that 
the  voter  shall  express  his  choice  by  means 
of  a  cross  made  opposite  the  name  of  the 
candidate  for  whom  he  intends  to  vote. 

The  courts  have  always  been  very  lenient 
in  their  rulings  as  to  what  will  be  considered 
as  being  the  required  cross.  If,  however,  a 
mark  bears  no  possible  resemblance  to  a 
cross;  or  is  evidently  as  a  distinguishing 
mark,^  the  ballot  cannot  be  counted. 

In  Rexroth  vs.  Schein-  the  court  was  called 
upon  to  pass  upon  the  legal  sufficiency  of  the 


AUSTKALIAN  BALLOT  SYSTEM       IQf) 

three     following     marks,     which     appeared 
within  the  circles  of  three  different  ballots: 


The  first  ballot  was  rejected,  but  the  sec- 
ond and  third  were  counted,  the  court  say- 
ing: "The  marks  were  made  with  ink,  and 
while  it  is  somewhat  blurred  and  cannot  be 
said  to  be  a  cross,  strictly  speaking,  still  we 
think  it  shows  an  attempt  on  the  part  of  the 
voter  to  make  such  a  mark,"  and  was,  there- 
fore, properly  counted. 

In  Apple  vs.  Barcroft^  the  Supreme  Court 
of  Illinois  again  passed  upon  the  sufficiency 
of  various  marks  found  on  some  of  the  bal- 
lots cast  in  an  election,  as  follows : 

"Ballot  numbered  1,  so  counted  for  ap- 
l^ellee,  contains  no  cross  in  the  appropriate 
place,  opposite  the  name  of  appellee,  or  pre- 
ceding the  appellation  or  title  of  the  party  of 
which  he  was  the  candidate.  There  are  two 
lines  commencing  in  the  circle,  preceding 
said  ai^pellation  or  title,  drawn  with  a  lead 
pencil  nearly  perpendicularly  through  said 


IIQ  ELECTION  LAWS 

circle  and  through  each  of  the  squares  oi)po- 
site  the  names  of  the  candidates.  These  lines 
were  at  some  points  coincident  and  at  others 
separated.  There  was  no  cross,  nor  any- 
thing approaching  one,  in  the  circle,  or  in 
the  square  opposite  appellee's  name,  as  the 
statute  required,  to  indicate  an  intention  of 
the  voter  to  vote  for  him  or  any  one  else. 
The  statute  must  be  substantially  complied 
with.  To  permit  the  voter  to  substitute  some 
other  method  of  his  own  of  marking  his  bal- 
lot, to  express  his  choice,  for  the  one  pro- 
vided, would  practically  nullify  the  statute. 
It  would  not  only  lead  to  uncertainty  in  ascer- 
taining the  voter's  intention,  but  would  de- 
stroy the  secrecy  of  the  l)allot,  by  means  of 
distinguishing  marks,  by  which  the  ballot  of 
each  voter  could  be  identified.  There  was  in 
this  instance  no  such  compliance  with  the 
statute  by  the  voter  as  contemplated  by  its 
provisions,  and  the  county  court  erred  in 
counting  this  ballot  for  appellee.  Ballot 
numbered  2  shows  a  cross,  thus  'X,'  not  in 
the  square  or  apju'opriate  jilace  o])i)osite  the 
name  of  appellant,  but  to  the  right  of  appel- 
lant's name,  between  such  name  and  the 
square  opposite  the  name  of  appellee.  AVhile 
there  was  some  plausibility  in  the  contention 
of  appellant  that  the  way  in  which  this  bal- 


AUtSTKALlAiN  BALLOT  SYSTEM  m 

lot  was  marked  showed  that  it  was  the  inten- 
tion of  the  voter  to  vote  for  appellant,  still,  as 
was  held  in  the  case  of  Parker  vs.  Orr  (de- 
cided at  the  present  term  of  this  court),  41  N. 
E.  1002,  it  cannot  be  held  a  sufficient  compli- 
ance with  the  statute.  It  is  clear  from  the 
statute  and  the  form  of  ballots  prescribed  that 
the  appropriate  place  for  the  cross  is  in  the 
circle  or  square  preceding  the  title  or  name, 
and  not  some  blank  space  discovered  by  the 
voter  at  the  right  of  such  title  or  name.  As 
to  the  ballot  in  question,  as  the  cross  is  be- 
tween the  names  of  the  appellant  and  ap- 
pellee, being  at  the  right  of  the  former,  and 
at  the  left  of  the  latter,  the  only  reason  for 
supposing  that  the  elector  intended  to  vote 
for  appellant,  rather  than  for  appellee,  is 
that  the  cross  is  nearer  appellant's  than  ap- 
pellee's name.  To  hold  such  a  ballot  as  one 
cast  for  either  candidate  would  be  mere  guess 
work.  Ballot  numbered  3  shows  mere  pencil 
erasures  of  the  name  of  appellant  and  all 
other  names  on  the  same  ticket.  No  argu- 
ment or  authority  is  needed  to  show  that  the 
trial  court  ruled  correctly  in  refusing  to  count 
this  ballot  for  either  party." 

An  unusually  heavily  marked  cross  will  not 
invalidate  the  ballot.^ 


112  ELECTION  LAWS 

Notes 

1.  See  Section  36. 

2.  206  111.  80. 

3.  158  111.  649,  41  N.  E.  1116. 

4.  Rexroth  vs.  Shein,  206  111.  80  yo  N.  E. 
Rep.  240. 

Section  35.    Validity  of  Vote  as  Depending  Upon 
Place  of  Mark  for  Candidate 

While  ballots  are  not  necessarily  to  be 
disregarded  because  not  marked  in  exact  ac- 
cordance with  the  directions  of  the  statute/ 
still  a  ballot  will  not  be  counted  for  any  can- 
didate unless  so  marked  as  to  clearly  show 
for  which  candidate  it  was  intended  to  be 
cast.^ 

In  State  ex  rel.  Grain  vs.  Acker^  the  case 
involved  the  right  to  an  office  for  which  the 
litigants  were  candidates.  The  respondent, 
Acker,  had  a  majority  of  sixteen  of  the  con- 
cededly  valid  ballots,  Imt  there  were  forty 
ballots  marked  in  the  following  manner: 
For 

County  Super- 
intendent of 
Schools. 
Vote  for  One. 
EUBY  M.  ACKER, 
A  Non-Partisan 


AUSTKALIAN  BALLOT  SYSTEM  113 

Superintendeiicy [  ] 

Edward  P.  Grain, 
E.  P.  GRAIN, 
A  Non-Partisan 
Suioerintendency [  ] 

[X] 

Tlie  relator,  Acker,  claimed  that  these  forty 
ballots  should  have  been  counted  for  him; 
the  court,  however,  held  that  the  ballots  were 
properly  rejected. 

There  are  a  number  of  other  decisions  hold- 
ing that  a  cross  so  placed  on  the  ballot  should 
not  be  counted  for  any  candidate."* 

The  law  on  this  subject  is  thus  summed  up 
in  Flanders  vs.  Roberts.^  "The  rule  to  be 
applied  is  this :  If  the  intent  of  the  voter  can 
be  fairly  determined,  effect  shall  be  given  to 
that  intent  and  the  vote  counted  in  accord- 
ance therewith.  This  is  the  rule  originally 
laid  down  in  re  Strong  20  Pick  (Mass.)  484, 
and  continued  under  the  Australian  ballot 
system  in  acts  which  are  now  R.  L.  c.  11, 
Sec.  238,  providing  that  if  the  voter's  choice 
cannot  be  determined,  his  ballot  shall  not  be 
counted ;  and  this  has  been  recognized  in  this 
commonwealth  in  all  the  reports  of  commit- 
tees of  the  legislature  on  which  it  has  acted 
in  deciding  questions  of  this  kind  involved  in 
the  election  of  its  members.    It  must  be  taken 


114  KLECTION   LAWS 

to  be  established  that  where  a  cross  is  put  in 
the  square  o])posite  the  blank  space  left  for 
the  insertion  of  a  name  of  a  candidate  for 
the  voter,  and  nothing  more  appears,  the  bal- 
lot is  not  to  ])e  counted  as  a  ballot  for  the  can- 
didate whose  name  is  printed  next  above  that 
space." 

It  has  even  been  held  that  a  cross  thus 
placed  is  a  "distinguishing  mark"  and  will 
invalidate  the  entire  ballot.*' 

It  has  been  held  that  when  the  lines  of  the 
X  cross  in  the  square  the  fact  that  such  lines 
extend  beyond  the  square  will  not  invalidate 
the  vote."  Thus  it  was  hekl  in  Illinois,  in  the 
case  of  Parker  vs.  Orr,^  that  the  statutory 
provision  that  the  voter  shall  prepare  his  bal- 
lot by  marking  in  the  appropriate  margin  or 
place  a  cross  opposite  the  name  of  the  candi- 
date, for  whom  he  desires  to  vote  is  merely 
directory,  and  does  not  render  invalid  ballots 
which  show  on  their  face  that  the  voters  at- 
tempted to  make  a  cross  in  the  proper  place, 
but  did  not  fully  succeed  in  doing  so. 

In  rendering  this  opinion  the  Court  said: 

"It  has  always  l)een  held  in  this  state  that 
if  the  intention  of  the  voter  can  be  fairly  as- 
certained from  his  ballot,  though  not  in  strict 
conformity  with  the  law,  effect  will  be  given 
to  that  intention.    In  other  words,  that  the 


AUSTKALIAX  BALLOT  SYSTEM  115 

voter  shall  not  be  disfranchised  or  deprived 
of  his  right  to  vote  through  mere  inadver- 
tence, mistake,  or  ignorance,  if  an  honest  in- 
tention can  be  ascertained  from  his  ballot." 

Notes 

1.  State  ex  rel  Grain  vs.  Acker,  142  Wis. 
394;  125  N.  W.  952. 

2.  Sweeney  vs.  II Jul.  23  Nev.  409,  48  Pac. 
Rep.  1036 ;  State  vs.  Peter,  21  Wash.  243,  57 
Pac.  Rep.  814. 

3.  142  Wis.  394,  123  X.  W.  952. 

4.  Kerr  vs.  Flewelling,  235  111.  325,  88 
N.  E.  624;  Patterson  vs.  People,  65  111.  App. 
651;  O'Connell  vs.  Mathews,  177  Mass.  518, 
59  N.  E.  Rep.  195 ;  Carnile  vs.  Jones,  31  Mont. 

590,  101  Pac.  Rep.  153. 

5.  182  Mass.  524,  65  N.  E.  Rep.  902. 

6.  Voorhees  vs.  Arnold,  1083  a  77,  78  N. 
W.  Rep.  795. 

7.  Parker  vs.  Orr,  158  111.  609,  41  N.  E. 
Rep.  1002.  See  also  McKinnon  vs.  People,  110 
111.  305 :  Berbrensmeyer  vs.  Krertz,  135  111. 

591,  26  N.  E.  704. 

8.  158  in.  609,  41  N.  E.  Rep.  1002. 

Section  36.    Distinguishing  Marks 

The  principal  object  of  the  Australian  bal- 
lot system  being  to  secure  the  secrecy  of  tlie 
ballot,  it*  naturally  follows  that,  as  a  general 
principle  of  law,  any  mark  either  upon  the 


116  ELECTION   LAWS 

lace  or  the  back  of  a  ballot,  by  which  the  per- 
son voting  it  might  be  identified,  will  invali- 
date the  ballot. 

It  is  often  a  difficult  question,  however,  to 
determine  what  is  sufficient  to  constitute  a 
distinguishing  mark. 

If  a  mark  of  any  kind  is  accidentally  made 
upon  a  ballot,  this  should  not  be  considered 
as  a  distinguishing  mark,  and  as  invalidating 
the  ballot.^    Thus  it  has  been  said:- 

"xVll  voters  are  not  alike  skillful  in  mark- 
ing. Some  are  not  accustomed  to  using  a  pen 
or  pencil,  and  may  place  some  slight  mark  on 
the  ballot  inadvertently,  or  a  cross  first  made 
may  be  clumsily  retraced.  It  is  evident  that 
in  such  cases,  and  in  others  where  the  unau- 
thorized mark  is  not  of  a  character  to  be  used 
readily  for  the  purpose  of  identification,  the 
ballots  should  be  counted,  but  where  the  un- 
authorized marks  are  made  deliberately,  and 
may  be  used  as  a  means  of  identifying  the 
ballot,  it  should  be  rejected." 

The  same  rule  is  generally  applied  when 
the  accidental  mark  is  found  upon  the  back 
of  the  ballot.  Thus  in  Eutledge  vs.  Craw- 
ford" it  was  held  that:  "The  fact  that  on 
the  back  of  a  ballot,  otherwise  regular,  is  a 
faint  type  impression  of  the  face  of  a  similar 
ticket,  caused  by  there  having  been  too  much 


AUSTEALIAX  BALLOT  SYSTEM  II7 

ink  on  the  type,  or  that  there  is  a  small  piece 
of  red  sealing  wax,  or  a  stain,  as  from  a  drop 
of  oil,  does  not,  in  the  absence  of  evidence  of 
unlawful  intent  in  causing  the  impression, 
make  the  ballot  illegal,  within  the  meaning 
of  Pol.  Code,  Sections  1206,  1207,  which  jDro- 
vide  that  a  ballot  must  be  rejected  if  it  bears 
on  the  outside  any  impression,  device,  color, 
or  thing  'designed'  to  distinguish  it  from 
other  legal  ballots,  or  'intended'  to  designate 
or  impart  knowledge  of  the  person  who 
voted  it." 

"If  an  elector  use  ink  to  scratch  names 
from  his  ballot,  and  by  that  means  the  ballot 
becomes  discolored,  such  discoloration  is  not 
a  mark  upon  the  ballot  which  will  authorize 
the  judges  of  election  to  refuse  to  count  the 
vote,  for  it  is  not  designated  to  distinguish 
it  from  other  ballots,  or  to  impart  knowl- 
edge of  the  person  who  voted  it."^ 

Among  various  ballots  which  have  been  de- 
clared void  on  account  of  a  distinguishing 
mark,  are  the  following : 

"A  ballot  having,  in  addition  to  stamps 
in  the  squares  opposite  the  names  of  candi- 
dates, a  stamp  in  a  square  opposite  to  which 
there  is  no  candidate,  but  merely  a  blank  left 
for  a  certain  office,  or  having  more  than  one 


118  ELECTION  LAWS 

stam]i  in  the  square  at  the  lioad  of  a  ]iarty's 
list.^ 

A  ballot  having  a  pencil  mark  across  the 
name  of  a  candidate  violates  such  statute,  as 
does  one  properly  stamped,  except  that  a 
stamp  opposite  the  name  of  a  candidate  was 
erased  so  that  a  hole  was  made  through  the 
ticket.^ 

A  ballot  bearing  within  one  of  the  large 
squares  a  distinct  marking,  as  with  a  ]iencil, 
about  one-fourth  of  an  inch  wide  and  five- 
sixteenths  of  an  inch  long,  in  addition  to  the 
voter's  stamp." 

Ballots  marked  with  a  cross  consisting  of 
more  than  two  intersecting  straight  lines.^ 

A  ballot  which  has  a  cross  under  the  head- 
ing of  one  ticket  outside  the  square,  and  the 
square  inclosed  in  a  large  circle.'^ 

Perhaps  the  plainest  case  of  all  as  to  a  dis- 
tinguishing mark,  is  where  a  voter  signs  his 
ballot.     Such  ballots  are  always  void.^" 

In  Tebbe  vs.  Smith, ^^  the  writing  of  the 
letter  ''J"  on  the  ballot  was  held  to  invali- 
date it. 

Notes 

1.  People  vs.  Parkhurst.  5:^  X.  Y.  Supp. 
598;  McMahon  vs.  Polk,  105  D.  296. 

2.  Whittan  vs.  Zahorik.  91  Iowa  23. 

3.  91  Cal.  526,  27  Pac.  Rep.  779. 


AUSTRALIAN  BALLOT  SYSTEM  HQ 

4.  \Yyinau  vs.  Lemon,  51  Cal.  273. 

5.  Sego  vs.  Stoddard,  186  liid.  297,  3G  N. 
Y.  204. 

6.  Id. 

7.  Zeis  vs.  Passwater,  142  Iiid.   375,  41 
N.  E.  Kep.  796. 

8.  Whittaii  vs.  Zaliorik,  91  Iowa  23. 

9.  Ellis  vs.  Glaser,  102  Mieh.  396,  61  N. 
W.  Rep.  648. 

10.  Vallier  vs.  Brakke,  7  S.  D.  343,  64  N. 
W.  180;  Parker  vs.  Orr,  158  111.  609 ;  Penning- 
ton vs.  Hare,  60  Minn.  146. 

11.  108  Cal.  101,  41  Pac.  Rep.  454. 

Section  37.  Marking  a  Straight  Ballot  and  a  Split 
Ballot 

Under  the  Massachusetts  form  of  the  Aus- 
tralian ballot  there  is  no  difference  between 
the  method  to  be  observed  in  marking  a 
straight  ballot  and  a  split  l)a]lot.  In  either 
ease  the  voter  must  place  his  cross  beside 
the  name  of  each  candidate  for  whom  he  de- 
sires to  vote. 

Where,  however  (as  for  example,  in  Illi- 
nois), tlie  names  of  candidates  are  arranged 
in  party  columns,  it  becomes  possible  to  vote 
a  straight  party  ticket  by  placing  a  cross  in 
the  circle  at  the  head  of  the  column. 

A  "split"  ticket  may  be  voted  in  either 
of  two  ways.    The  simplest  and  safest  way 


120  ELECTION  LAWS 

is  for  the  voter  to  (lisrogarcl  tlio  circle  and 
to  vote  for  each  candidate  separately.  He 
may,  however  (in  most  States),  put  his  cross 
in  the  circle  of  oiu>  party,  and  place  a  cross 
opposite  the  name  of  such  candidates  of  other 
parties  as  he  may  desire  to  vote  for.  A 
ballot  so  marked  will  be  counted  for  all  the 
candidates  of  the  party  in  whose  circle  the 
cross  has  been  placed,  except  those  candi- 
dates who  are  candidates  for  positions,  for 
which  a  candidate  of  some  other  party  is 
marked.  If  more  than  one  person  is  to  be 
elected  to  a  certain  position  a  voter  who  de- 
sires to  split  his  ticket  must  vote  for  all  the 
candidates  for  the  position  for  whom  he  de- 
sires his  vote  to  be  counted.  For  example, 
if  ten  are  to  be  elected  to  the  position  of 
County  Commissioner,  and  a  voter  makes  a 
cross  in  the  Democratic  circle,  and  in  front 
of  the  names  of  one  Republican  candidate  for 
Count}^  Commissioner,  this  ballot  cannot  be 
counted  for  any  of  the  Democratic  candidates 
for  County  Commissioner. 

Section  38.    Number  of  Tim^  Name  of  a  Candi- 
date May  Appear  on  the  Ballot 

Under  election  laws  which  provide  that  the 
names  of  candidates  for  office  shall  be 
grouped  in  columns,  by  parties,  the  name  of  a 


AUSTRALIAN  BALLOT  SYSTEM  121 

candidate  may  appear  as  many  times  on  the 
ballot  as  a  candidate  for  a  particular  office, 
as  he  has  been  nominated  by  different 
parties.^ 

In  several  States,  however,  where  the 
names  of  the  candidates  are  arranged  in 
party  colmnns,  the  statutes  expressly  pro- 
hibit the  name  of  a  candidate  appearing  more 
than  once  on  the  official  ballot.  Such  statutes 
have  been  held  to  be  constitutional.-  Thus, 
in  Todd  vs.  Election  Commissioners,^  the 
Court  said : 

"It  is  also  insisted  that  the  candidate  has 
the  constitutional  right  to  have  his  name  ap- 
pear upon  the  ticket  of  every  party  which  in- 
dorses him.  It  (the  statute)  gives  every 
candidate  the  right  to  have  his  name  appear 
upon  the  ticket  once.  Naturally,  it  belongs 
in  the  column  of  that  party  with  which  he  is 
openly  affiliated ;  but  if  he  chooses  to  have  his 
name  attached  to  the  ticket  of  some  other 
party,  and  that  party  does  not  object,  he  pos- 
sesses that  right.  But  I  know  of  no  reason 
or  authority  for  saying  that  any  candidate 
possesses  the  constitutional  and  inalienable 
right  to  have  his  name  appear  more  than  once 
upon  the  official  ballot  containing  the  tickets 
of  two  or  more  political  parties.  The  Aus- 
tralian  ballot  contemplates   that   his   name 


122  ELECTION  LAWS 

shall  be  there  but  once.  It  follows  then  that 
every  voter  has  a  reasonable  opportunity  to 
vote  for  him.  This  is  the  sole  constitutional 
right  guaranteed  him.  He  has  no  occasion  to 
find  fault  so  long  as  he  is  permitted  to  have 
his  name  upon  the  ballot  upon  such  ticket  as 
he  chooses,  with  the  constitutional  right  fol- 
lowing of  an  opportunity  given  to  every 
voter  to  vote  for  him,  which  he  can  do  by 
simply  making  two  crosses  instead  of  one." 

Where  the  election  laws  of  a  State  provide 
that  the  candidates  shall  be  arranged  alpha- 
betically under  the  title  of  the  office  for  which 
they  are  a  candidate  it  is  generally  held  that 
the  name  of  a  candidate  cannot  appear  more 
than  once  on  the  ballot.  In  State  vs.  Allen^ 
the  court  was  called  upon  to  construe  the 
following  provision  of  the  election  laws  of 
the  State  of  Nebraska : 

''Every  ballot  shall  contain  the  name  of 
every  candidate  whose  nomination  for  any  of- 
fice specified  in  the  ballot  has  been  certified 
or  filed  according  to  the  provisions  of  this 
act,  and  no  other  names.  The  names  of  can- 
didates for  each  office  shall  be  arranged  un- 
der the  designation  of-the  office  in  alphabeti- 
cal order  according  to  surnames,  except  that 
the  names  of  electors  of  President  and  Vice- 
President  of  the  United  States  presented  in 


AUSTEALIAN  BALLOT  SYSTEM  123 

one  certificate  of  nomination  shall  be  ar- 
ranged in  a  separate  group.  Every  ballot 
shall  also  contain  the  name  of  the  party  or 
principle  which  the  candidate  represents,  as 
contained  in  the  certificate  of  nomination," 
etc.  Under  this  statute  it  was  held  that  the 
name  of  such  candidate  could  appear  once 
only  on  the  official  and  sample  ballots,  accom- 
panied by  such  political  or  other  designation 
as  corresponds  to  his  nomination  papers  on 
file  with  the  proper  officer. 

Notes 

1.  Simpson  vs.  Osborn,  52  Kan.  328 ;  Com- 
monwealth vs.  Richmond,  5  Pa.  Dist.  647 ; 
Fisher  vs.  Dudley,  74  Md.  242. 

2.  State  vs.  Bode,  55  Ohio  State  224;  but 
contra  ]\Iurphy  vs.  Curry,  137  Cal.  479. 

3.  104  Mich.  474. 

4.  43  Neb.  651. 

Section  39.    Writing-  in  Additional  Names  on 
Ballot 

Under  the  Australian  Ballot  System,  every 
voter  has  at  all  times  the  right  to  write  in 
additional  names  of  persons  for  whom  he 
desires  to  vote.  This  is  true  whether  or  not 
a  line  is  left  on  the  ballot,  upon  which  to 
write  such  names. 


124  ELECTIOX  LAWS 

This  question  was  passed  upon  by  the 
Court  in  the  case  of  Sanner  vs.  Patton,^  the 
decision  in  wliich  case  was,  in  part,  as  follows : 

''This  was  a  proceeding  instituted  by 
Shields  H.  Sanner  in  the  County  Court  of 
Shelby  County  to  contest  an  election  for  the 
office  of  Commissioner  of  Highways  of  the 
town  of  Penn  held  on  the  3d  day  of  April, 
1894,  wherein  Robert  A.  Patton  had  been 
declared  elected.  The  defendant,  Robert  A. 
Patton,  put  in  an  answer  to  the  petition,  and 
on  the  hearing  of  the  pleadings,  and  evi- 
dence, the  court  entered  a  judgment  dismiss- 
ing the  petition. 

"The  record  in  this  case  shows  that  Robert 
A,  Patton,  the  appellee,  was  nominated  for 
the  office  of  a  Commissioner  of  Highways  and 
his  name  placed  upon  the  official  ballot ;  that 
Sanner 's  name  was  not  printed  or  placed  on 
the  official  ballot,  and  that  no  ballot  contain- 
ing his  name  was  furnished  the  voters  at  said 
election.  It  is  expressly  stipulated  in  the  rec- 
ord that  Patton  was  the  only  persons  nomi- 
nated as  candidate  for  such  office ;  that 
Shields  H.  Sanner  was  not  nominated  for 
such  office  by  any  of  the  modes  prescribed  by 
statute;  that  only  one  ticket  was  prepared 
and  printed  by  the  Town  Clerk,  as  follows : 


AUSTKALIAN  BALLOT  SYSTEM  125 

0     Republican  % 

For  Town  Clerk 
JOHN  L.  GREGORY 

For  Assessor 

JAMES  C.  THOMPSON 

For  Collector 
WELLS  M.  BECK 

For  Commissioner  of  Highways 
R.  A.  PATTON 

Justices  of  the  Peace 
E.  B.  CUTLER 
IRA  T.  BAIRD 

For  Constables 

D.  R.  CUTLER 

E.  T.  ROBISON 

Indorsement 

''Official  Ballot  of  Annual  Town  Meet- 
ing of  Penn  Township,  Shelby  County, 
Illinois,  April  3d,  1894. 

''R.  BAND, 
''Town  Clerk." 
*'At  the  election  42  ballots  were  cast.  Six- 
teen of  the  42  contained  a  cross  in  the  large 
circle  on  the  ticket  opposite  the  word  'Repub- 
lican' and  they  were  counted  for  Robert  A. 
Patton.    One  ballot  had  no  mark  in  the  large 


126  ELECTION  LAWS 

circle,  but  contained  a  cross  in  each  of  the 
blocks  opposite  all  the  names  on  the  ticket, 
except  the  first  one.  It  also  appeared  that  25 
ballots  were  rejected  by  the  judges  of  elec- 
tion, being  in  the  same  form  as  the  17  above 
referred  to ;  that  23  had  the  name  of  S.  H. 
Sanner  written  under  the  name  of  E.  x\.  Pat- 
ton,  in  blank  space  between  said  Patton's 
name  and  the  words  'For  Justice  of  the 
Peace,'  and  a  l)lock  and  X  therein  were  placed 
at  the  left  of  Banner's  name.  It  was  stipu- 
lated in  the  trial  that  the  25  ballots  were 
rejected  by  the  judges  of  election  because  the 
name  of  Sanner  was  written  on  the  ballots 
for  the  office  of  Commissioner  of  Higliwa,vs ; 
the  judges  holding  that  a  voter  had  no  right 
to  write  Banner's  name  on  an  official  ticket, 
for  the  reason  that  he  had  not  been  nomi- 
nated, and  that  by  so  doing  the  ticket  was 
void,  and  should  be  rejected  by  the  judges  of 
election  in  canvassing  the  votes. 

"It  is  apparent  from  Section  1  of  the  act 
that  all  ballots  to  be  used  at  the  election  are 
required  to  be  printed  and  furnished  at  pub- 
lic exi3ense,  and  the  use  of  all  other  bal- 
lots is  absolutely  prohibited;  and,  if  no  sec- 
tion of  the  act  permitted  the  voter  to  change 
the  ballot  by  inserting  the  name  of  some  per- 
son whose  name  did  not  appear  on  the  ticket 


AUSTEALIAN  BALLOT  SYSTEM  127 

SO  furnished,  we  would  be  inclined  to  hold 
that  the  voter  would  be  compelled  to  vote 
the  ticket  as  it  was  furnished  to  him,  or  be 
denied  the  privilege  of  voting  for  any  per- 
son whatever.  There  are,  however,  other 
sections  of  the  act,  which,  when  considered 
in  connection  with  Section  1,  would  seem  to 
indicate  that  the  Legislature  never  intended 
to  restrict  the  voter  to  the  persons  whose 
names  were  printed  on  the  official  ballot. 
Section  21  of  the  act  requires  the  officers 
upon  whom  the  duty  is  imposed  of  provid- 
ing polling  places  to  provide  a  sufficient  num- 
ber of  booths,  and  the  booths  shall  be  fur- 
nished with  shelves,  pens,  penholders,  ink, 
blotters,  and  pencils,  as  will  enable  the  voter 
to  prepare  his  ballot  for  voting.  Each  booth 
is  required  to  be  three  feet  square,  and  con- 
tain a  shelf  one  foot  wide,  at  a  convenient 
height  for  writing.  If  the  voter,  when  he 
receives  a  ballot  and  enters  the  booth,  has  no 
authority  to  write  the  name  of  a  candidate 
on  the  ticket,  and  can  do  nothing  but  take  a 
ballot  and  make  a  cross  in  the  circle,  or  a 
cross  opposite  the  names  of  such  persons  on 
the  ticket  as  he  may  wish  to  vote  for,  no 
necessity  exists  for  a  shelf  to  write  on,  or 
for  ink,  pens,  and  blotter.  If  the  voter  is 
permitted  to  do  nothing  but  make  a  cross  on 


128  ELECTION  LAWS 

the  ticket,  as  indicated,  lie  can  do  this  with  a 
pencil  in  a  moment,  and  no  necessity  exists 
for  the  writing  material  required  to  be  fur- 
nished. But,  independent  of  this  section,  we 
think  Section  23,  which  points  out  the  mode 
or  manner  of  voting  after  the  voter  receives 
the  ballot,  clearly  confers  upon  the  voter  the 
power  to  insert  in  the  ballot  the  name  or 
names  of  such  persons  as  he  may  desire  to 
vote  for  for  any  office  to  be  filled  at  the  elec- 
tion, and  vote  for  such  persons.  Upon  ex- 
amination of  this  section,  it  will  be  seen  that, 
if  the  voter  desires  to  cast  his  vote  for  all 
the  candidates  of  one  political  party  whose 
names  appear  on  the  ticket,  he  may  do  so  by 
merely  making  an  X  in  the  circle  printed 
on  the  ticket,  opposite  the  name  of  the  politi- 
cal party,  and  a  vote  of  this  character  will 
be  counted  for  all  the  candidates  on  that 
ticket.  There  is  another  mode.  If  the  voter 
does  not  desire  to  vote  for  all  the  candidates 
whose  names  appear  on  the  ticket  of  the 
political  party  to  which  he  belongs,  he  may 
put  a  cross  in  the  circle  opposite  the  name 
of  his  political  party  and  then  make  an  X 
opposite  the  name  of  any  candidate  on  any 
one  of  the  other  tickets  for  whom  he  may 
desire  to  vote,  and  the  ballot  will  be  counted 
for  any  candidate  before  whose  name  the  X 


AUSTEALIAN  BALLOT  SYSTEM  129 

thus  appears ;  and,  with  this  exception,  it  will 
be  counted  for  those  candidates  appearing  be- 
low the  circle  containing  the  X.  There  is 
yet  another  mode,  which  in  the  language  of 
Section  23,  is  as  follows:  'The  voter  shall 
prepare  his  ballot  by  marking  in  the  appro- 
priate margin  or  place  an  X  opposite  the 
name  of  the  candidate  of  his  choice  for  each 
office  to  be  filled,  or  by  writing  in  the  name 
of  the  candidate  of  his  choice  in  a  blank 
space  on  said  ticket,  making  an  X  opposite 
thereto.'  Under  this  clause  the  voter  may 
pay  no  attention  whatever  to  the  circle,  but 
may  place  a  cross  opposite  the  name  on  the 
ballot  of  any  candidate  whose  name  may  be 
on  the  ballot  for  whom  he  desires  to  vote, 
and  the  ballot  shall  be  counted  for  such  can- 
didate, or  he  may  write  the  name  of  a  candi- 
date in  the  ballot  and  place  an  X  opposite 
the  name,  and  the  ballot  shall  be  counted  for 
such  person. 

"It  is  claimed  that  Section  14  prohibits 
the  voter  from  writing  on  the  ballot  the 
name  of  a  person  who  has  not  been  nomi- 
nated. That  section,  as  has  been  seen,  in 
substance,  declares  that  the  names  of  all  per- 
sons to  be  voted  for  shall  be  printed  on  one 
ballot — all  nominations  of  any  political  party 
being  placed  under  the  party  appellation,  as 


130  ELECTION  LAWS 

designated  in  the  certificates  of  nomination 
— and  the  ballot  shall  contain  no  other  name. 
This  section  has  reference  to  the  duty  of 
those  intrusted  with  preparing  the  ballot  to 
be  placed  in  the  hands  of  the  judges  of  elec- 
tion; but  after  the  ballot  has  been  prepared, 
and  placed  in  the  hands  of  the  judge?  of  elec- 
tion, whether  the  voter  may  or  may  not  add 
the  name  of  a  candidate  to  the  ballot  is  a 
question  upon  which  the  section  is  silent. 
Some  importance  is  sought  to  be  attached  to 
Section  26  of  the  act,  which,  in  substance, 
provides:  No  ballot  without  the  official  in- 
dorsement shall  be  allowed  to  be  deposited 
in  the  ballot  box,  and  none  but  ballots  pro- 
vided in  accordance  with  the  provisions  of 
this  act  shall  be  counted.  As  to  this  pro- 
vision, it  is  sufficient  to  say  that  the  addi- 
tion of  the  name  of  one  or  more  candidates 
to  a  ballot  by  the  voter  does  not  destroy  the 
official  indorsement  on  the  ballot,  nor  does 
the  change  render  the  ballot  one  prepared 
contrary  to  the  provisions  of  the  act.  On 
the  other  hand,  the  ballot,  after  the  change, 
still  retains  the  official  indorsement,  and  is 
still  a  ballot  prepared  at  public  expense,  as 
contemplated  in  the  act.  It  is  also  said  that 
ample  provision  has  been  made  in  the  act, 
under  which  candidates  mav  be  nominated, 


AUSTRALIAN  BALLOT  SYSTEM  131 

and  thus  be  entitled  to  have  their  names 
placed  on  the  ticket,  and  that  it  is  the  inten- 
tion of  the  act  that  no  vote  should  be  cast 
for  a  person  who  was  not  nominated.  If 
such  was  the  intention,  why  did  not  the  Legis- 
lature say  so,  and  why  did  it  say  directly  the 
contrary?  What,  it  may  be  asked,  is  there 
so  sacred  in  the  nomination  of  a  candidate 
for  office  by  a  political  caucus  that  a  voter 
should  be  compelled  to  vote  for  a  nominee  of 
the  caucus,  or  else  be  deprived  of  the  elec- 
tive franchise!  Under  Section  1,  Art.  7,  of 
our  constitution,  every  male  citizen  of  the 
United  States  above  the  age  of  21  years, 
who  has  resided  in  the  State  1  year,  in  the 
county  90  days,  and  in  the  election  district 
30  days  next  preceding  any  election,  is  en- 
titled to  vote  at  such  election.  To  exercise 
this  right  there  is  one  exception,  and  but  one, 
so  far  as  we  have  been  able  to  find ;  and  that 
is  found  in  Section  7  of  the  said  article,  which 
declares :  '  The  General  Assembly  shall  pass 
laws  excluding  from  the  right  of  suffrage 
persons  convicted  of  infamous  crimes.' 
Adopting  the  well-known  maxim  or  rule  of 
construction  that  the  expression  of  one  thing 
is  to  be  regarded  as  the  exclusion  of  another, 
the  Legislature  does  not  possess  the  power  to 
take  away  from  a  resident  citizen  the  right 


132  ELECTION  LAWS 

of  suffrage  unless  lie  has  been  convicted  of 
an  infamous  crime,  nor  can  the  Legislature 
do  indirectly  what  they  cannot  do  directly. 
And  yet,  if  the  construction  contended  for  by 
appellee  be  the  correct  one,  the  voter  is  de- 
prived of  the  constitutional  right  of  suffrage ; 
he  is  deprived  of  the  right  of  exercising  his 
own  choice;  and  where  this  right  is  taken 
away  there  is  nothing  left  worthy  of  the 
name  of  the  right  of  suffrage — the  boasted 
free  ballot  becomes  a  delusion.  It  will  not 
be  necessary  to  extend  the  discussion.  We 
are  satisfied  that  the  Legislature,  when  they 
adopted  that  part  of  Section  23  which  au- 
thorizes the  voter  to  write  the  name  of  the 
candidate  of  his  choice  in  a  blank  space  on 
the  ticket,  making  a  cross  opposite  thereto, 
did  so  advisedly,  and  for  the  purpose  of  pre- 
serving the  right  of  suffrage  which  belongs 
to  the  voter."     . 

"In  conclusion,  we  are  of  the  opinion  that 
the  ballots  cast  for  S.  H.  Sanner  were  legal 
ballots,  and  should  have  been  counted  for 
him,  and  that  the  court  erred  in  dimissing  the 
petition.  The  judgment  will  be  reversed  and 
the  cause  remanded,  with  directions  to  enter 
a  judgment  in  favor  of  petitioner." 

Notes 

1.     i:)5  111.  :)r):l40  X.  E.  290. 


CHAPTER  VIII 

VOTING  MACHINES 
Section  40.    In  General 

The  latest  step  in  ballot  reform  has  been 
the  introduction  of  voting  machines  in  place 
of  written  ballot.  These  machines  are  in- 
tended to  both  register  and  count  the  votes. 
It  is  claimed  for  these  machines  that  they 
lessen  the  chances  of  mistake  in  voting  a 
ticket,  and  make  mistakes  in  counting  the 
ticket  an  impossibility. 

''Three  varieties  of  the  voting  machine 
have  been  legally  sanctioned:  (1)  The 
Myers,  in  which  the  single  ballot  is  placed  in 
a  frame  having  a  push-knob  for  each  can- 
didate's name,  the  voter  indicating  his  choice 
by  pushing  the  knob  opposite  his  candidate's 
name,  when  the  machine  indicates  the  vote 
on  a  dial  at  the  back  of  the  frame,  and  locks 
the  knobs  of  all  other  candidates  for  the 
same  office  (before  a  second  voter  is  ready, 
all  knobs  are  unlocked) ;  (2)  the  McTam- 
many,  which  contains  on  its  face  a  slot  for 
each  office,  beneath  which  is  a  card  bearing 

133 


134  ELECTION  LAWS 

the  names  of  the  candidates  for  the  office  seen 
through  the  sk)t,  the  voter's  choice  being- 
indicated  by  turning  a  wheel  till  the  name 
of  his  candidate  appears,  when  he  pushes  a 
knob  which  punctures  the  tally-sheet;  and  (3) 
the  Rhines,  in  which  the  names  are  arranged 
as  in  the  Myers,  by  parties  and  offices.  Slip 
names  are  inserted  in  the  push  buttons ;  and 
separate  tally-sheets  for  each  candidate,  with 
vertical  serial  numbers,  are  placed  beneath 
the  face,  the  voter  pushing  a  button  which 
places  a  punch  in  such  a  position  for  each 
name  that  when  the  lid  of  the  machine  is 
closed  the  next  number  on  each  tally-sheet  is 
punctured."^ 

Notes 

1.     Americana,  Volume  II. 

Section  41.    Constitutionality  of  Laws  Providing" 
for  the  Use  of  Voting  Machines  in  Elections 

The  constitutionality  of  laws  providing  for 
the  use  of  voting  machines  in  elections  has 
been  repeatedly  upheld. 

The  Massachusetts  Supreme  Court,^  in 
passing  upon  the  question,  said  as  follows: 
"In  construing  a  constitutional  provision  re- 
quiring that  representatives  'shall  be  chosen 
by  written  votes'  and  an  implied  requirement 
for  sorting  and  counting  votes,  the   Court 


VOTING  MACHINES  135 

said:  'It  seems  to  us  that  the  object  and 
even  the  words  of  the  Constitution  in  requir- 
ing "written  votes"  are  satisfied  when  the 
voter  makes  a  change  in  a  material  object, 
for  instance,  by  causing  a  wheel  to  revolve  a 
fixed  distance,  if  the  material  object  changed 
is  so  connected  with  or  related  to  a  written 
or  printed  name  purporting  to  be  the  name 
of  a  candidate  for  office,  that,  by  the  under- 
standing of  all,  the  making  of  the  change  ex- 
loresses  a  vote  for  the  candidate  whose  name 
is  thus  connected  with  the  device.  So  far  as 
we  liave  been  considering  the  requirement  of 
written  votes  alone,  and  have  assumed  that 
all  other  constitutional  conditions  are  com- 
plied with.  But  it  remains  to  consider 
whether  the  result  is  changed  by  the  pro- 
visions as  to  sorting  and  counting  votes 
where  those  provisions  apply.  These  seem 
to  us  to  raise  less  difficulty.  The  provisions 
do  not  express  a  constitutional  end ;  they  ex- 
press merely  assumptions  that  sorting  and 
counting  will  be  necessary  if  you  have  writ- 
ten votes,  as  they  would  have  been  necessary 
a  hundred  years  ago.  .  .  .  If  it  be 
deemed  technical!}^  necessary  that  the  possi- 
bility at  least  of  sorting  and  counting  should 
remain,  it  does  remain.  Whether  in  the  form 
of  successive  punches  in  a  line  upon  paper 


136  ELECTION  LAWS 

or  ill  the  marked  revolutions  of  a  wheel  ap- 
propriated to  a  given  candidate,  material 
changes  abide  which  signify  by  predeter- 
mined language  the  number  of  votes  cast, 
exactly  to  the  same  extent  that  it  would  be 
signified  by  slips  of  paper  bearing  characters 
in  printer's  ink.  The  votes  could  be  counted 
as  cast,  if  it  were  necessary.  They  can  be 
counted  afterwards  as  well.  The  fact  that 
the  index  of  macliinery  has  cut  down  the 
chance  of  personal  error  to  a  minimum  surely 
is  not  an  objection  sanctioned  by  the  Con- 
stitution.' " 

In  re  Voting  Machine-  the  Supreme  Court 
of  Rhode  Island  likewise  upheld  this  method 
of  voting: 

"The  primary  meaning  of  'ballot,'  which 
signified  a  little  ball,  is  not  the  one  intended, 
but  the  broader  meaning  which  has  been  sub- 
stituted for  the  word  by  reason  of  the  change 
in  the  mode  of  voting,  from  little  balls  to 
that  of  paper  vote.  The  purpose  of  the  Con- 
stitution is  evidently  to  provide  a  record 
more  permanent  than  that  of  counting  hands 
and  the  like,  ))y  which  the  declared  result 
may  be  verified.  .  .  .  We  see  no  reason 
why  a  choice  may  not  be  indicated  as  well 
by  a  puncture  of  the  pai)er  as  by  a  pencil 
mark.     Tlio    language    of   the    Constitution 


VOTING  MACHINES  137 

seems,  to  be  broad  enough  to  cover  the  pro- 
posaL  The  purjjose  of  the  Constitution  is 
subserved  and  the  possibility  of  the  change 
of  method  is  anticipated  and  provided  for. 
The  essential  thing  to  be  secured  is  a  record 
of  the  choice  of  the  voters,  and  this,  wo 
understand,  will  be  secured  by  the  method 
proposed." 

The  Supreme  Court  of  Illinois  upheld  such 
a  law  in  the  case  of  Lynch  vs.  Malley  et  al.'' ; 
citing  with  approval  the  Massachusetts  case 
and  Rhode  Island  case  above  referred  to. 
Similar  decisions  have  been  rendered  in  a 
number  of  other  cases.^ 

But  in  Helme  vs.  Board  of  Election  Com- 
missioners^ a  law  providing  for  a  mixed  use 
of  election  machines  and  written  ballots,  in 
the  same  precincts,  was  held  to  be  unconsti- 
tutional, as  interfering  with  the  secrecy  of 
the  ballot.  And  in  Nichols  vs.  Minton*''  the 
Supreme  Court  of  Massachusetts  modified 
its  earlier  decision'  by  holding  the  adoption 
of  voting  machines  to  be  unconstitutional 
where  the  voter  was  compelled  to  trust  every- 
thing to  the  perfection  of  the  machine.  In 
the  later  opinion,  the  Court  said : 

"But  the  method  in  detail  is  entirely  un- 
like the  writing  of  a  name  of  chosen  candi- 
dates upon  a  piece  of  paper,  and  the  deposit 


138  ELECTION  LAWS 

of  the  paper  in  a  box,  to  be  afterwards  taken 
out  and  counted.  In  the  use  of  the  machine 
the  voter  must  trust  everything  to  the  per- 
fection of  the  mechanism.  He  cannot  see 
whether  it  is  working  properly  or  not.  This 
chance  of  error,  whether  greater  or  less  than 
the  chance  that  a  ballot  deposited  in  a  box 
will  not  be  properly  counted,  is  very  different 
from  it.  It  was  not  within  the  knowledge  or 
contemplation  of  the  framers  of  the  Con- 
stitution. .  .  .  To  a  majority  of  the 
Court,  the  adoption  and  use  of  a  machine 
which  employs  none  of  these  methods,  and 
whose  working  and  whose  record  of  the  re- 
sult is  invisible  to  the  voter,  seem  so  great 
a  departure  from  the  method  referred  to  in 
the  language  of  the  Constitution  as  not  to  be 
included  within  its  broadest  meaning.  Even 
if  the  principal  objects  to  be  accomplished  by 
the  constitutional  requirement  would  be  ac- 
complished as  well  by  the  use  of  the  machine, 
it  seems  too  great  a  stretch  of  language  to 
say  that  the  use  of  it  is  the  expression  of  a 
choice  ])y  a  written  vote. ' ' 

Notes 

1.  Opinion  of  Justices,  178  Mass.  605. 

2.  19  E.  I.  729. 

3.  215  111.  574 ;  2  Am.  &  Eng.  Ann.  Cases, 

837. 


VOTING  MACHINES  139 

4.  McTanimany  Voting  :\[aeliine,  23  R.  I. 
630 ;  TrnmbuU  vs.  Board  of  Canvassers 
(]\rieh.),  103  N.  W.  993;  Detroit  vs.  Board 
of  Inspectors,  102 ;  2,  1029 ;  Ex  parte  Arnold, 
128  Mo.  260;  Elwell  vs.  Comstock,  9  Am.  & 
Eng.  Anno.  Cases  270;  United  States  Stand- 
ard Voting  ]\Iaehine  Co.  vs.  Hobson,  132  Iowa 
38. 

5.  140  Mich.  390. 

6.  196  Mass.  410,  82  X.  E.  Rep.  50. 

7.  Opinions  of  Justices,  178  Mass.  605. 


CHAPTER  TX 

COUNTING,  RETURNING  AND  CAN- 
VASSING VOTES 

Section  42,    Counting  the  Votes 

It  is  generally  provided  in  election  laws 
that  the  election  officials  shall  begin  to  count 
the  ballots  immediately  after  the  closing  of 
the  polls.  This  is  for  the  jiurpose  of  mini- 
mizing the  opportunities  for  fraudulently 
changing  the  ballots.  The  ballots  should  be 
counted  at  the  time  specified  by  statute;'  but 
in  the  absence  of  fraud  a  postponement  of 
the  count  will  not  be  sufficient  to  vitiate  the 
returns.^  Nor  will  an  election  be  necessarily 
rendered  invalid  by  the  election  officials  be- 
ginning to  count  the  votes  before  the  polls 
close,  the  statute  providing  that  the  votes 
should  be  counted  after  the  closing  of  the 
polls.-'' 

It  is  not  necessary  that  the  ballots  should 
be  counted  at  the  polling  place,  unless  there  is 
a  mandatory  statute  to  this  effect.^  In  Beh- 
rensmeyer  vs.  Kreitz^  the  judges  took  the 
ballots  to  a  room  upstairs  from  the  polling 

140 


COUNTING.  KETUE.NING,   CANVASSING       141 

place,  but  it  was  held  that  in  the  absence  of 
any  proof  of  fraud  such  action  did  not  vitiate 
either  the  election  or  the  returns. 

In  cases  where  the  statute  requires  that 
the  ballots  shall  be  publicly  counted,  it  is  un- 
lawful to  count  them  in  a  private  room  from 
which  bystanders  are  excluded;*^  but  the  ex- 
clusion of  bystanders  in  the  absence  of  fraud, 
is  not,  by  itself,  a  sufficient  violation  of  the 
law  to  cause  the  rejection  of  the  returns. ''' 

Statutory  provisions  as  to  the  manner  of 
counting  the  votes  are  almost  invariably  con- 
strued as  being  directory  instead  of  manda- 
tory. A  mere  irregularity  in  the  manner  of 
counting  the  votes,  where  no  fraud  or  mis- 
take is  charged,  is  not  sufficient  to  sustain  an 
election  contest.^  In,  in  re  Zacharias,''  how- 
ever, it  was  held  that  as  the  statutes  of  the 
State  provided  that  the  ballots  should  be 
deliberately  taken  out  of  the  ballot  box,  and 
each  ballot  counted  as  it  was  taken  out  from 
the  ballot  box,  it  was  improper  and  irregular 
to  empty  the  ballot  box  all  at  once  and  to 
separate  the  ballots  into  distinct  lots. 

The  statutes  generally  provide  that  rep- 
resentatives of  the  different  political  parties 
shall  be  entitled  to  be  present  to  watch  the 
count ;  when  such  statutes  are  in  force  the 
election  officials  have  no  authority  to  exclude 


142  ELECTION  LAWS 

the  watchers  properly  appointed  by  the  can- 
didates, or  the  political  committees  of  the 
different  parties.^" 

Under  no  circumstances  is  it  permissible 
for  any  candidates  for  office  to  assist  in  the 
counting  of  votes. ^^  If  a  candidate  does 
count  or  assist  in  counting  the  ballots,  he 
loses  the  ballots  thus  counted  by  him,^-  Such 
an  action,  however,  will  not  invalidate  the 
election,  or  disqualify  the  candidate  from 
holding  the  office,  if  he  is  elected  without  the 
aid  of  the  votes  counted  by  him. 

The  count  of  the  ballots  by  persons  other 
than  the  election  officials,  while  always  im- 
l)roper,  will  not  affect  the  validity  of  the  elec- 
tion, in  the  absence  of  fraud. ^" 

Notes 

1.  Taft  vs.  Adams,  3  Gray  (Mass.)  126. 

2.  Atty.-Gen.  vs.  Glaser,  102  Mich.  390, 
61  N.  W.  648;  Atkinson  vs.  Lorbeer,  111  Cal. 
419,  44  Pac.  Eep.  162. 

3.  Ex  parte  Williams,  35  Tex.  Cr.  75,  31 
S.  W.  653. 

4.  United  States  vs.  Brewer,  139  U.  S. 
278;  Daly  vs.  Petroff,  10  Phila.  (Pa.)  389. 

5.  136  111.  591,  26  N.  E.  Rep.  704. 

6.  United  States  vs.  Badinelle,  37  Fed. 
Rep.  138 ;  15  Cyc.  374. 

7.  Atkinson   vs.   Lorbeor,   lU   Cal,   419, 


COUNTING,  EETUKJSriNG,   CANVASSING       143 

44  Pac.  Rep.  162. 

8.  Hartzell  vs.  Smith,  18  Pa.  Co.  Ct.  551. 

9.  3  Pa.  Co.  Ct.  656. 

10.  Commonwealth  vs.  Miller,  98  Ky.  -146, 
33  S.  W.  401. 

11.  Greele  vs.  Pinney,  62  Conn.  478,  26  Atl. 
1106. 

12.  Id. 

13.  Roberts  vs.  Clavert,  98  N.  C.  580,  4 
S.  E.  127. 

Section  43.    Recount 

After  the  ballots  cast  in  any  election  have 
been  once  connted  and  the  result  declared, 
the  election  officials  have  no  authority  to  re- 
count such  ballots,  unless  such  right  is  ex- 
pressly given  by  statute.^  Furthermore,  a 
recount  cannot  be  ordered  by  any  court,  even 
when  fraud  or  mistake  are  manifest,  in  the 
absence  of  statutory  authority.- 

In  many  States  there  are  no  statutory  pro- 
visions authorizing  such  recounts  of  votes. 

''A  petition  for  a  recount  is  governed  by 
the  rule  which  requires  a  plaintiff  to  state  in 
his  declaration  a  prima  facie  case  for  recov- 
ery, and  a  petition  therefore  praying  for  a 
recount  of  the  ballots  on  the  ground  that  a 
ballot  was  improperly  rejected  because  of  a 
difference  of  opinion  among  the  election  offi- 
cers was  quashed  because  it  failed  to  inform 


144  ELECTION  LAWS 

the  court  why  tlie  ballot  was  rejected, 
or  upon  what  point  the  election  officers 
differed."-' 

Notes 

1.  State  vs.  Donnewirth,  21  Ohio  St.  216; 
Peopk^  vs.  Board  of  Town  Canvassers,  19  N. 
Y.  Supp.  206. 

2.  American  and  English  Encyclopedia  of 
Law,  Vol.  X,  p.  751. 

3.  Keboch's  Contested  Election.  19  Pa. 
Co.  Ct.  Rep.  663,  6  Pa.  Dist.  Rep.  637. 

Section  44.    Returns 

"The  question  as  to  what  papers  consti- 
tute the  official  returns  is  purely  a  matter  of 
statutory  regulation,  but  it  may  be  said  gen- 
erally that  the  returns  consist  of  the  poll- 
book  in  which  is  entered  the  certificate  of 
the  officers  conducting  the  election,  together 
with  a  list  of  voters  and  one  or  more  of  the 
tally-sheets,  all  of  which  are  to  be  carefully 
enveloped,  sealed,  and  delivered  to  the  officer 
or  board  designated  by  statute.^  Only  such 
papers  as  the  statute  requires  may  be  re- 
garded as  election  returns.  If  the  officers 
go  further  and  make  statements  on  their 
own  responsibility  such  statements  should  be 
disregarded.-  The  returns  of  election  in- 
spectors are  ministerial  and  not  judicial 
acts."  But  they  arc  (piasi-records  and  nmst 
stand  as  evidence  establishing  the  result  of 


COUiXTJXO,  KETUR^UNG,    CANVASSING       145 

the  vote  until  they  are  impeached  and  over- 
come by  affirmative  proof  that  they  do  not 
speak  the  truth."  ^  ^' 

The  returns  must  always  l)e  authenticated 
by  the  judges,  clerks  or  inspectors  of  elec- 
tion. 

The  method  of  forwarding  returns  are 
regulated  by  statute,  but  the  statutory  pro- 
visions on  this  point  are  always  construed 
to  be  directory  unless  the  statute  expressly 
states  a  non-compliance  with  the  methods 
will  render  the  returns  void.^ 

In  the  absence  of  fraud,  irregularity  in 
making  returns  is  not  sufficient  to  justify  the 
rejection  of  the  returns." 

Even  a  failure  to  make  returns  from  cer- 
tain election  precincts  will  not  render  the 
election  invalid,  unless  it  can  be  shown  that 
the  votes  not  returned  would  have  changed 
the  result." 

The  making  of  returns  is  a  mere  minis- 
terial act,  and  election  officials  may  be  com- 
pelled by  mandamus  to  make  such  returns.-' 

Notes 

1.  People  vs.  Ruyle,  91  111.  525;  State  v. 
Eastman,  46  Neb.  675,  65  N.  W.  805 ;  State  v. 
McFadden,  46  Neb.  668,  65  N.  W.  800. 

Tally  Sheets — In  Missouri  tally  sheets  are 
unknown  to  the  law,  and,  although  they  are 


146  ELECTION   LAWS 

convenient  and  perhaps  necessary  for  the 
judges  and  clerks  of  election  in  casting  up 
the  votes  polled  for  the  several  candidates 
they  constitute;  no  part  of  the  official  re- 
turn. State  V.  Trigg,  72  Mo.  365 ;  State  v. 
Stuckey,  78  Mo.  App.  583.  And  the  same  is 
true  in  North  Dakota.  State  vs.  McKenzie, 
10  N.  D.  132,  86  X.  W.  231. 

Names  of  Candidates — It  has  been  held 
that  the  returns  of  precinct  officers  stating 
the  number  of  votes  received  by  the  Demo- 
cratic and  Republican  candidates  respectively 
for  a  particular  office  are  sufficient  without 
stating  the  names  of  the  candidates.  Tunks 
vs.  Vincent,  106  Ky.  829,  S.  W.  622,  21  Ky. 
L.  Rep.  475. 

Votes  of  Parties — The  returns  of  election 
ought  to  show  not  only  the  votes  for  candi- 
dates, but  also  definitely  the  votes  of  parties. 
In  re  McKinley-Citizens  Party,  6  Pa.  Dist. 
109. 

2.  Pacheo  v.  Beck,  52  Cal.  3;  Ex  parte 
Heath,  3  Hill  (N.  Y.)  42.  On  the  trial  of  a 
mandamus  proceeding  to  compel  the  county 
board  of  canvassers  to  reassemble  and  com- 
plete the  canvass  of  an  election,  defendants 
offered  in  evidence  a  paper  taken  from  the 
sealed  envelope  with  the  poll-book  and  signed 
by  the  judges  of  the  election,  stating  that 
certain  persons  (naming  them),  offered  to 
vote,  they  being  men  enlisted  as  soldiers  in 


COUNTING,  EETUBNING,   CANVASSING       I47 

Fort  Sully,  and  entitled  to  vote,  under  the 
statutes  of  the  United  States,  at  the  nearest 
voting  precinct,  the  officers  stated  that  they 
accepted  their  votes  in  a  separate  ballot-box, 
canvassed  the  same  separately,  put  them  back 
in  the  same  box,  and  returned  the  same  in- 
closed in  the  larger  box  under  seal  and  lock. 
It  Avas  held  that  such  paper  was  properly 
excluded  as  the  judges  of  election  had  no 
right  to  make  such  statements,  it  not  being 
one  of  their  prescribed  duties.  Smith  vs. 
Lawrence,  2  S.  D.  185,  49  N.  W.  7. 

Superfluous  Certificate — No  other  certifi- 
cate of  the  officers  of  election  than  that  pro- 
vided by  statute  should  be  made  and  if  made 
should  be  disregarded.  State  vs.  Stuckey,  78 
Mo.  App.  533. 

3.  Their  character  is  shown  by  the  free- 
dom with  which  they  are  scrutinized  in  pro- 
ceedings by  mandamus  or  information  in  the 
nature  of  a  quo  warranto.  State  vs.  McFad- 
den,  46  Neb.  668,  65  N.  W.  800;  Ex  parte 
Heath,  3  Hill   (N.  Y.)    42. 

4.  Powell  vs.  Holman,  50  Ark.  85,  6  S.  W. 
505. 

5.  15  Cyc,  p.  376. 

6.  Fowler  vs.  State,  68  Tex.,  303  S.  W. 
Rep.  255, 

7.  Kellogg  vs.  Hickman,  12  Colo.  256,  21 
Pac,  Rep.  325 ;  Mustard  vs.  Hoppess,  69  Ind. 
324;  Lehman  vs.  McBride,  18  Ohio  St.  573.  . 


148  ELECTION  LAWS 

8.  Ex  parte  Heath,  3  Hill  (N.  Y.)  42. 

9.  Evos  vs.  State,  131  Ind.  560,  31  N.  E. 
Kep.  357. 

Section  45.    Canvass 

The  duties  of  the  board  or  officials  who 
canvass  the  returns  are  of  a  ministerial 
character ;  the  only  power  possessed  by  these 
officials  which  is  of  even  a  quasi-judicial 
character,  is  that  of  deciding  as  to  whether 
the  papers  transmitted  to  them,  and  the  sig- 
natures thereon,  are  genuine. 

The  scope  of  the  power  of  canvassers  of 
election  is  summarized  as  follows : 

''Thus  canvassers  have  no  power  to  de- 
termine whether  or  not  the  votes  cast  at  the 
election  were  legal  or  illegal,^  or  to  inquire 
into  the  validity  of  the  certificates  of  nomi- 
nation of  candidates.-  Nor  have  they  power 
to  withhold  their  certificate  of  election,  on 
the  ground  that  fraud  and  bribery  were  used 
in  obtaining  votes  for  the  successful  candi- 
date.^ So  the  ballots  of  the  electors  as 
shown  by  the  statements  of  the  inspectors  of 
election  are  the  only  evidence  upon  which 
the  board  of  canvassers  can  act.^  They  have 
no  authority  to  pass  upon  the  eligibility  of 
a  candidate  to  office.^  They  have  no  author- 
ity to  pass  by  the  returns  made  to  them  by 
the  judge  of  election  and  undertake  to  count 


COUNTING,  BETURNING,   CANVASSING       149 

the  ballots  themselves.*^  So  where  a  propo- 
sition on  some  question  is  submitted  to  the 
voters  at  a  general  election,  in  a  State  where 
such  proposition  in  order  to  be  carried  must 
receive  a  majority  of  all  the  votes  cast  at 
such  election  for  any  candidate  or  question, 
the  county  canvassers  have  no  authority  to 
find  and  declare  the  total  vote  polled  at  the 
election,  and  a  finding  in  that  respect  made 
by  them  will  he  rejected  as  surplusage.'  It 
is  the  duty  of  the  canvassers  to  receive  and 
count  all  returns  sent  to  them  which  are 
not  obviously  spurious,  however  false  and 
fraudulent  they  may  be  in  fact.^  But  where 
election  returns  are  false  on  their  face,  show- 
ing that  the  election  officers,  in  positive  dis- 
regard of  the  mandatory  election  laws  and 
of  their  oaths,  received  and  counted  many 
votes  in  reckless  disregard  of  the  terms  of 
the  statutes,  they  carry  no  favorable  pre- 
sumption whatsoever,  and  should  be  stricken 
from  the  election  returns  altogether."  And 
if  a  paper  purjDorting  to  be  a  return  is  ob- 
viously a  forgery  the  canvassers  should 
disregard  it.^*'  But  if  it  is  doubtful  they 
cannot  judge  of  its  validity  and  must  include 
it  in  the  count. ^^  In  short,  their  duties  are 
confined  to  a  pure,  inflexible  mathematical 
calculation,  and  they  have  no  authority  to 


150  ELECTION  LAWS 

hear  evidence  upoji   any  matters  of  discre- 
tion." ^^  13 

Notes 

1.  Franklin  Connty  vs.  State,  24  Fla.  55, 
3  So.  471,  12  Am.  St.  Rep.  183;  State  vs. 
Tanzey,  49  Ohio  St.  656,  32  N.  E.  750. 

A  county  Board  of  Canvassers  cannot  re- 
ject any  votes  which  may  come  to  it  duly 
certified  on  the  ground  that  the  statute  which 
authorized  such  votes  to  be  cast  is  uncon- 
stitutional. Matter  of  Woods,  5  Misc.  (X.  Y.) 
575,  26  N.  Y.  Suppl.  169. 

In  South  Carolina  the  State  Board  of  Can- 
vassers has  the  power  to  throAv  out  ballots 
which  do  not  meet  all  the  requirements  of 
the  statute.  Ex  parte  Riggs,  52  S.  C.  298,  29 
S.  E.  645. 

2.  Piggott  vs.  Cascade  County,  12  Mont. 
537,  31  Pac.  536;  Chamberlain  vs.  Hedger, 
12  S.  D.  135,  80  N.  W.  178. 

3.  Com.  V.  Emminger,  74  Pa.  St.  479. 

4.  They  have  no  power  to  examine  wit- 
nesse  or  receive  other  evidences  to  prove  for 
whom  a  ballot  was  intended.  People  vs.  Tis- 
dale,  1  Dougl.  (Mich.)  59;  Kortz  vs.  Greene 
County,  12  Abb.  N.  Cas.   (N.  Y.)   84. 

5.  State  vs.  Finley,  74  Mo.  App.  213; 
Matter  of  Atkinson,  28  ]Misc.  (N.  Y.)  694,  59 
N.  Y.  Suppl.  792  (affirmed  without  opinion 
in  45  N.  Y.  App.  Div.  628,  61  N.  Y.  Suppl. 
1131). 


COUNTING,  BETUENING,   CANVASSING       ]51 

Where  a  candidate  has  been  nominated  by 
more  than  one  party  the  canvassers  should 
reckon  the  total  number  of  votes  cast  for 
him  and  not  the  number  cast  for  him  by  each 
party.  People  vs.  Erie  County,  79  N,  Y.  App. 
Div.  514,  80  N.  Y.  Suppl.  25. 

6.  Holt  vs.  People,  102  111.  App.  276. 

7.  State  vs.  Clark,  59  Neb.  702,  82  N.  W.  8. 

8.  Missouri,  State  vs.  Steers,  44  Mo.  223; 
Wisconsin,  State  vs.  Board  of  State  Canvas- 
sers, 36  Wis.  498. 

9.  Matter  of  Barber,  10  Phila.  (Pa.)  579 
(affirmed  in  32  Leg.  Int.  229). 

10.  In  Re  Orphans'  Ct.,  1  Brewst.  (Pa.) 
67,  5  Phila.  (Pa.)  102;  Lawrence  vs.  Knight, 
4  Phila.   (Pa.)   355. 

11.  In  re  Orphan's  Ct.,  1  Brewst.  (Pa.) 
67,  5  Phila.  (Pa.)  102;  Lawrence  vs.  Knight, 
4  Phila.  (Pa.)  355. 

12.  Clark  vs.  Hampden  County,  126  Mass, 
282;  Luce  vs.  Mayhew,  13  Gray  (Mass.)  83; 
In  re  Strong,  20  Pick.  (Mass.)  484. 

13.  15  Cyc,  pp.  381-382. 


CHAPTER  X 

ELECTION  CONTESTS 

Section  46.     Nature  of  Proceedings  to  Contest 
Election 

"As  the  election  officers  perform  for  the 
most  part  ministerial  functions  only,  their 
returns,  and  the  certificates  of  election  which 
are  issued  upon  them,  are  not  conclusive  in 
favor  of  the  officers  who  would  thereby  ap- 
pear to  be  chosen,  but  the  final  decision  must 
rest  with  the  courts.  This  is  the  general 
rule,  and  the  exceptions  are  of  those  cases 
where  the  law  under  which  the  canvass  is 
made  declares  the  decision  conclusive,  or 
where  a  special  statutory  l)oard  is  established 
with  powers  of  final  decision.  Whatever 
may  be  the  office,  an  election  to  it  is  only  made 
by  the  candidate  receiving  the  requisite  ma- 
jority or  plurality  of  the  legal  votes  cast; 
and  whoever,  without  such  election,  intrudes 
into  an  office,  whether  with  or  without  the 
formal  evidences  of  title,  may  be  ousted  on 
the  proper  judicial  inquiry."^ 

A    proceeding   to    contest    an    election    is 

152 


ELECTION  CONTESTS  153 

strictly  statutory  and  is  neither  an  action  at 
law  or  a  suit  in  equity,-  although  the  char- 
acter of  the  proceedings  are  in  the  nature  of 
chancery  suits. 

The  judicial  character  of  a  proceeding  to 
contest  an  election  was  discussed  by  the 
Supreme  Court  of  Illinois  in  the  case  of 
Quartier  vs.  Dowiat.^ 

This  case  was  a  proceeding  instituted  by 
Dowiat  in  the  Circuit  Court  of  Vermilion 
county  to  contest  the  election  of  Quartier  to 
the  office  of  president  of  the  board  of  trustees 
of  the  village  of  Westville.  A  petition  was 
filed  with  the  clerk  of  the  said  Circuit  Court 
which,  after  alleging  many  grounds  why  the 
appellant  should  be  declared  not  duly  elected 
and  why  the  appellee  should  be  declared 
elected,  contained  the  following  prayer: 
"Your  petitioner  further  represents  that  on 
a  count  of  the  ballots  cast  by  the  electors 
your  petitioner  would  have  a  clear  majority, 
and  he  asks  that  such  relief  be  granted  as  is 
provided  by  the  statute  in  such  cases  made 
and  provided,  and  for  such  other  relief  as 
equity,  justice  and  the  good  conscience  of 
this  court  will  grant."  The  petition  con- 
cluded as  follows :  "Your  petitioner  further 
asks  that  upon  a  recount  of  said  ballots,  as 
provided  by  law,  he  be  declared  duly  elected 


154  ELECTION  LAWS 

president  of  the  village  of  Westville,  and 
the  declaration  of  the  said  judges  that  the 
said  Eugene  Quartier  has  been  elected  be 
annulled  and  canceled."  A  regular  form  of 
chancery  summons  was  issued,  which  or- 
dered the  appellant  to  "answer  unto  Peter 
Dowiat  in  his  certain  bill  of  complaint,  being 
a  petition  to  contest  election,  filed  in  said 
court  on  the  chancery  side  thereof, ' '  and  was 
served  as  a  chancery  summons.  The  appel- 
lant appeared  and  interposed  a  special  de- 
murrer on  the  ground  that  the  contest  of  an 
election  was  a  statutory  proceeding,  and  that 
a  court  of  chancery  had  no  jurisdiction  to 
hear  and  determine  an  election  contest. 
Thereupon  appellee  "moved  the  court  to  di- 
rect the  clerk  thereof  to  place  the  cause  upon 
the  common-law  docket  of  this  court  at  the 
present  term  thereof."  The  demurrer  and 
the  motion,  called  in  the  record  a  "cross- 
motion,"  were  argued  by  the  respective 
counsel  together,  and  the  court  granted,  the 
motion  as  a  cross  motion,  but  made  no  for- 
mal order  as  to  the  disposition  of  the  de- 
murrer and  the  cause  was  thereupon  placed 
upon  the  common-law  docket.  When  the 
cause  had  been  duly  entered  on  the  common- 
law  docket,  the  appellant  jiresentod  a  plea  in 
abatement,  in  which  he  recited  all  of  the  pro- 


ELECTION  CONTESTS  155 

ceedings  in  the  cause  up  to  that  time,  and 
urged  that  the  court  had  no  jurisdiction  of 
his  person,  for  the  reason  that  he  had  not 
been  served  with  process,  as  required  in 
common-law  actions.  A  general  demurrer 
was  sustained  to  this  plea,  and,  the  appellant 
electing  to  stand  by  this  plea,  the  court  heard 
the  cause  on  the  merits,  and  entered  judg- 
ment in  accordance  with  the  prayer  of  the 
petition.  There  was  an  appeal  from  such 
judgment. 

In  the  course  of  its  decision  the  court  said : 
' '  The  court  did  not  err  in  transferring  the 
cause  from  the  chancery  to  the  common-law 
docket.  This  is  a  purely  statutory  proceed- 
ing, and  is  not  regarded  as  a  cause  at  law  or 
in  equity.  Douglas  v.  Hutchinson,  183  111. 
323,  55  N.  E.  628.  In  Reed  v.  Boyd,  84  111. 
66,  which  was  a  suit  to  establish  a  mechanic's 
lien  under  a  statutory  proceeding,  the  statute 
requiring  such  suit  tgo  be  entered  upon  the 
common-law  docket,  we  said  (page  71) :  'Nor 
can  the  fact  that  the  statute  requires  it  to 
be  placed  on  the  common-law  docket  change 
the  nature  of  a  cause.  It  is  immaterial 
whether  it  is  on  one  docket  or  another.  Its 
position  on  the  docket  cannot  change  its 
nature  or  its  inherent  qualities.' 

"The  demurrer  to  the  plea  in  abatement 


156  ELECTION  LAWS 

was  properly  sustained.  Proceedings  of 
this  character  are  in  the  nature  of  chancery 
suits,  and  the  rules  of  chancery  practice  ap- 
ply. Weinberg  v.  Noonan,  193  111.  165,  61 
N.  E.  1022;  Kurd's  Rev.  St.  1903,  c.  46,  p. 
116,  entitled  'Elections.'  Section  119  of  the 
election  act  provides  the  final  order  in  a  con- 
tested election  case  shall  be  a  judgment  de- 
claring who  is  elected ;  not  a  decree  in  which 
recitals  of  fact  could  be  incorporated.  In 
case  of  appeal  or  writ  of  error  to  reverse 
the  same,  the  burden  of  preserving  the  evi- 
dence to  sustain  an  attack  on  the  judgment 
devolves  on  the  party  who  questions  the  cor- 
rectness of  the  action  of  the  court. 

"The  summons  recited  that  the  cause  was 
on  the  chancery  side  of  the  court.  This 
statement  was  not  inaccurate,  as  a  proceed- 
ing of  this  character  is  governed  by  the 
chancery  practice.     Eeed   v.   Boyd,   supra." 

Where  a  mode  of  contesting  an  election  has 
been  provided,  this  excludes  all  other  meth- 
ods of  contest.^ 

Where  the  statutes  provide  no  method  of 
contesting  an  election  an  action  of  quo  war- 
ranto"^ generally  is  the  proper  method  of  try- 
ing the  question  as  to  who  is  entitled  to  the 
office.  Equity  courts  in  some  instances, 
where  there  was  no  common  law  method  of 


ELECTION  CONTESTS  157 

trying  an  election  contest,  have  taken  juris- 
diction under  the  equitable  maxim  that 
"equity  will  not  suffer  a  right  to  be  with- 
out a  remedy;"^  but  some  cases  hold  that 
where  the  statutes  fail  to  i3rovide  the  man- 
ner in  which  an  election  contest  shall  be  con- 
ducted, that  no  such  contest  can  be  made." 

In  State  vs.  Dubuclet^  it  was  held  that: 

"No  statute  having  been  enacted  pre- 
scribing the  manner  of  reviewing  the  action 
of  the  State  returning  board,  their  decision 
is  not  subject  to  revision  by  the  courts,  not- 
withstanding Const,  art.  10,  providing  that 
'all  courts  shall  be  open,  and  every  person, 
for  injury  done  him  in  his  lands,  goods,  per- 
son or  reputation,  shall  have  adequate  rem- 
edy by  due  process  of  law,  and  justice 
administered  without  denial  or  unreasonable 
delay.'  " 

In  such  a  case  the  result  certified  by  those 
holding  the  election  is  final  and  conclusive.^ 

As  an  illustration  of  the  general  character 
of  State  statutes  regulating  election  con- 
tests, the  provisions  of  the  statute  of  Illinois 
on  this  subject  are  here  inserted: 

^^When  Legislature  to  Hear.  §94.  The 
Legislature,  in  joint  meeting,  shall  hear  and 
determine  cases  of  contested  elections  of  gov- 
ernor and  lieutenant-governor,  secretary  of 


158  ELECTION  LAWS 

state,  auditor  of  pn])lic  accounts,  treasurer, 
superintendent  of  public  instruction,  and 
attorney  general.  The  meeting  of  the  two 
houses,  to  decide  upon  such  elections,  shall 
be  held  in  the  hall  of  the  house  of  repre- 
sentatives, and  the  speaker  of  the  house  shall 
preside. 

^^  Senators  and  Representatives.  §95. 
The  senate  and  house  of  representatives  shall 
severally  hear  and  determine  contests  of  the 
election  of  their  respective  members. 

''Bij  Circuit  Court.  §96.  The  Circuit 
Court  shall  hear  and  determine  contests  of 
the  election  of  judges  of  the  Supreme  Court, 
clerks  of  the  Supreme  Court,  judges  of  the 
Circuit  Court,  judges  of  the  Superior  Court 
of  Cook  county,  and  members  of  the  State 
Board  of  Equalization,  but  no  judge  of  the 
Circuit  Court  shall  sit  upon  the  hearing  of 
any  case  in  which  he  is  a  party. 

^^By  Circuit  Courts,  and  in  Cook  County, 
also  by  the  Superior  Court.  §  97.  The  Cir- 
cuit Courts  in  the  respective  counties,  and  in 
Cook  county  the  Superior  Court  also  may 
have  (hear)  and  determine  contests  of  the 
election  of  judges  of  the  County  Court, 
mayors  of  cities,  presidents  of  county  boards, 
presidents  of  villages,  in  reference  to  the 
removal  of  county  seats  and  in  reference  to 


ELECTION  CONTESTS  159 

any  other  subject  which  may  be  submitted 
to  the  vote  of  the  people  of  the  county,  and 
concurrrent  jurisdiction  with  the  County 
Court  in  all  cases  mentioned  in  section  ninety- 
eight  (98). 

''By  County  Court.  §98.  The  County 
Court  shall  hear  and  determine  contests  of 
election  of  all  other  county,  township  and 
precinct  officers  and  all  other  officers  for  the 
contesting  of  whose  election  no  provision  is 
made. 

''Election  of  State  Officers — Petition  of 
Contestant.  §  99.  When  any  elector  shall 
desire  to  contest  the  election  of  governor, 
lieutenant-governor,  secretary  of  state,  audi- 
tor of  public  accounts,  treasurer,  superin- 
tendent of  public  instruction,  or  attorney- 
general,  he  shall,  within  ten  days  after  the 
result  of  the  election  shall  have  been  deter- 
mined, present  a  petition  to  the  General  As- 
sembly, setting  forth  the  points  on  which  he 
will  contest  such  election,  and  praying  for 
leave  to  produce  his  proof. 

"Joint  Committee  to  Take  Testimony. 
§  100.  The  General  Assembly  shall  appoint 
a  joint  committee  to  take  the  testimony  on 
the  part  of  the  petitioner,  and  the  person 
whose  place  is  contested. 

"Powers  of  Joint  Committee.     §101.     The 


"IflO  ELECTION  LAWS 

committee  so  appointed  shall  have  power  to 
send  for  witnesses,  and  compel  the  attend- 
ance of  witnesses  and  the  production  of 
papers,  issue  commissions  under  the  hand  of 
its  chairman,  to  any  officer  authorized  to 
take  depositions  in  other  cases  to  take  the 
deposition  of  witnesses  upon  the  points  set 
forth  in  the  petition,  at  such  time  and  place 
as  the  commission  shall  direct. 

^'Notice.  §  102.  Reasonable  notice  shall 
be  given  by  the  party  in  whose  favor  the 
deposition  is  to  be  taken  to  the  opposite 
party  of  the  time  and  place  of  taking  the 
same. 

' '  Testimony.  ^  103.  No  testimony  shall 
be  taken  except  upon  the  points  set  forth  in 
the  petition. 

^^ Report  of  Conniiiftee  - — Hearing  —  De- 
cision. §  104.  The  committee  shall  report 
the  facts  to  the  house  and  a  day  shall  be  fixed 
by  a  joint  resolution  for  the  meeting  of  the 
two  houses  to  decide  upon  the  same,  in  which 
decision  the  yeas  and  nays  shall  be  taken 
and  entered  upon  the  journal. 

"Who  May  Contest  Senator  or  Represen- 
tative. §  105.  The  election  of  any  membei' 
declared  duly  elected  to  a  seat  in  the  senate 
or  house  of  representatives  of  the  General 
Assembly  may  be  contested  by  any  qualified 


ELECTION  CONTESTS  161 

voter  of  the  county  or  district  to  be  repre- 
sented by  such  senator  or  representative. 

''Notice  of  Contest.  §  106.  The  contest- 
ant shall,  within  thirty  days  after  the  result 
of  the  election  shall  have  been  determined, 
serve  on  the  person  whose  election  he  will 
contest,  a  notice  of  his  intention  to  contest 
such  election,  expressing  the  points  on  which 
the  same  will  be  contested;  and  shall,  also, 
on  or  before  the  next  session  of  the  General 
Assembly,  deliver  a  copy  of  such  notice  to 
the  secretary  of  state.  In  case  the  person 
whose  election  is  contested  is  absent,  or  can- 
not be  found,  service  may  be  had  by  leaving 
a  copy  of  such  notice  at  his  usual  place  of 
residence. 

''■Testimony — How  Taken.  §107.  When- 
ever a  notice  shall  have  been  given  of  inten- 
tion to  contest  an  election,  as  provided  in  the 
])receding  section,  either  party  may  proceed 
to  take  testimony  of  any  witness  before  any 
judge,  justice  of  the  peace,  clerk  of  a  court, 
master  in  chancery  or  notary  public,  on  giv- 
ing to  the  adverse  party  or  his  attorney,  ten 
days'  notice  of  the  time  and  place  of  taking 
the  same,  and  one  day  in  addition  thereto 
(Sunday  inclusive)  for  every  fifty  miles' 
travel  from  the  place  of  residence  of  such 
party  to  the  place  where  such  deposition  is 


162  ELECTION   LAWS 

to  bo  taken,  five  days'  notice  shall  be  suf- 
ficient. 

^'Poiver  of  Officer  Taking  Testimony. 
§  108.  The  officer  before  whom  depositions 
are  taken  shall  have  power  to  compel  the 
production  of  papers  and  the  attendance  of 
witnesses ;  a'nd  the  same  proceedings  may  be 
had  to  compel  the  attendance  of  witnesses  as 
are  provided  in  the  cases  of  taking  depo- 
sitions to  be  used  in  courts  of  law  and 
equity. 

^^Depositions,  etc.,  to  Be  Sent  to  Secre- 
tary of  State.  §  109.  A  copy  of  the  notice 
to  take  depositions,  with  proof  of  the  service 
thereof,  with  the  deposition,  shall  be  sealed 
up  and  transmitted,  by  mail  or  otherwise,  to 
the  secretary  of  state  with  an  indorsement 
thereon  showing  the  names  of  the  contesting 
parties,  the  office  contested  and  the  nature  of 
the  papers. 

'■^Delivery  of  Notice  of  Contest,  etc. — 'Duty 
of  Presiding  Officer.  ^  110.  The  secretary 
of  state  shall  deliver  the  copy  of  the  notice 
deposited  with  him  by  the  contestant,  and 
the  depositions  unopened,  to  the  presiding 
officer  of  the  branch  of  the  General  Assembly 
to  which  the  contest  relates,  on  or  before  the 
second  day  of  its  session  next  after  the 
receipt  of  the  same ;  and  the  presiding  officer 


ELECTION  CONTESTS  163 

sliall  immediately  give  notice  to  liis  house 
that  such  papers  are  in  his  possession. 

^^ Rights  of  Either  House  Saved.  §111. 
Nothing  herein  contained  shall  be  construed 
to  abridge  the  right  of  either  branch  of  the 
General  Assembly  to  grant  commissions  to 
take  depositions,  or  to  send  for  and  examine 
any  witnesses  it  may  desire  to  hear  on  such 
trial. 

''Who  May  Contest  Election  of  Other  Offi- 
cers. §  112.  The  election  of  any  person 
declared  elected  to  any  office  other  than 
governor,  lieutenant-governor,  secretary  of 
state,  auditor  of  public  accounts,  treasurer, 
superintendent  of  public  instruction,  attor- 
ney-general, senator  or  representative,  may 
be  contested  by  any  elector  of  the  State, 
judicial  division,  district,  county,  town  or 
precinct  in  and  for  which  the  person  is  de- 
clared elected. 

''Contest (Hit  to  File  Statement,  etc.  §  113. 
The  person  desiring  to  contest  such  election 
shall,  within  thirty  days  after  the  person 
whose  election  is  contested  is  declared  elected, 
file  with  the  clerk  of  the  proper  court  a  state- 
ment, in  writing,  setting  forth  the  points  on 
which  he  will  contest  the  election,  which  state- 
ment shall  be  verified  by  affidavit  in  the  same 
manner  as  bills  in  chancery  may  be  verified. 


164  ELECTION  LAWS 

^'Summons.  §11-4:.  Upon  the  filing  of 
such  statement,  snmmons  sliall  issue  against 
the  person  whose  office  is  contested,  and  he 
may  be  served  with  process,  or  notified  to 
appear,  in  the  same  manner  as  is  provided 
in  cases  in  chancery. 

^^  Evidence.  §  115.  Evidence  may  be 
taken  in  the  same  manner  and  upon  like 
notice  as  in  cases  of  chancery. 

^' Trial.  §  116.  The  case  shall  be  tried  in 
like  manner  as  cases  in  chancery,  and  may- 
be heard  and  determined  by  the  court  in  term 
time  or  by  the  judge  in  vacation  at  any  time 
not  less  than  ten  (10)  days  after  service  of 
process,  or  at  any  time  after  the  defendant 
is  required  by  notification  to  appear,  and 
shall  have  preference  in  the  order  of  hearing 
to  all  other  cases.  The  court  in  term  time 
or  the  judge  in  vacation  may  make  and  en- 
force all  necessary  orders  for  the  preserva- 
tion and  production  of  the  ballots,  poll  books, 
tally  papers,  returns,  registers  and  other 
papers  or  evidence  that  may  bear  upon  the 
contest. 

^' Other  Elections  Contested.  §117.  Any 
five  electors  of  the  county  may  contest  an 
election  upon  any  subject  which  may  by  law 
be  submitted  to  a  vote  of  the  people  of  the 
county,    upon   filing    in    the    Circuit    Court, 


ELECTION  CONTESTS  165 

within  thirty  days  after  the  result  of  the  elec- 
tion shall  have  been  determined,  a  written 
statement  in  like  form  as  in  other  cases  of 
contested  elections  in  the  Circuit  Court. 
The  county  shall  be  made  defendant,  and 
process  shall  be  served  as  in  suits  against 
the  county ;  and  like  proceedings  shall  be  had 
as  in  other  cases  of  contested  elections  before 
such  court. 

^^Wlien  Elector  May  Defend  for  County. 
§  118.  In  case  the  county  board  shall  fail  or 
refuse  properly  to  defend  such  contest,  the 
court  shall  allow  any  one  or  more  electors 
of  the  county  to  appear  and  defend,  in  which 
case  the  electors  so  defending  shall  be  liable 
for  the  costs  in  case  the  judgment  of  the  court 
shall  be  in  favor  of  the  contestant. 

'^Judgment.  §  119.  The  judgment  of  the 
court  in  cases  of  contested  election,  shall  con- 
firm or  annul  the  election  according  to  the 
right  of  the  matter ;  or,  in  case  the  contest  is 
in  relation  to  the  election  of  some  person  to 
an  office,  shall  declare  as  elected  the  person 
who  shall  appear  to  be  duly  elected. 

^^Tie.  §  120.  If  it  appears  that  two  or 
more  persons  have,  or  would  have  had,  if  the 
legal  ballots  cast  or  intended  to  be  cast  for 
them  had  been  counted,  the  highest  and  an 
equal  number  of  votes  for  the  same  office, 


166  ELECTION  LAWS 

the  persons  receiving  suck  votes  shall  decide 
by  lot,  in  such  manner  as  the  court  shall 
direct,  which  of  them  shall  be  declared  duly 
elected;  and  the  judgment  shall  be  entered 
accordingly. 

^^ Certified  Copy  of  Judgment.  §121.  A 
certified  copy  of  the  judgment  of  the  court 
shall  have  the  same  effect  as  to  the  result  of 
the  election  as  if  it  had  been  so  declared  by 
the  canvassers. 

'^When  Election  Adjudged  Void.  §122. 
When  the  person  whose  election  is  contested 
is  found  to  have  received  the  highest  number 
of  legal  votes,  but  the  election  is  declared 
null  by  reason  of  legal  disqualification  on  his 
part,  or  for  other  causes,  the  person  receiv- 
ing the  next  highest  number  of  votes  shall 
not  be  declared  elected,  but  the  election  shall 
be  declared  void. 

'^Appeal.  §  123.  In  all  cases  of  contested 
elections  in  the  Circuit  Courts  or  County 
Courts,  appeals  may  be  taken  to  the  Supreme 
Court  in  the  same  manner,  and  upon  like  con- 
ditions, as  is  provided  b}'  law  for  taking 
appeals  in  cases  in  chancery  from  the  Cir- 
cuit Courts." 

''All  provisions  of  the  election  law  arc 
mandatory,  if  enforcement  is  sought  before 
election  in  a  direct  proceeding  for  that  pur- 


ELECTION  CONTESTS  167 

pose;  but  after  election  all  should  be  hciu 
directory  only  in  support  of  the  result,  un- 
less of  a  character  to  effect  an  obstruction 
to  the  free  and  intelligent  casting  of  the  vote 
or  to  the  ascertainment  of  the  result,  or 
unless  the  provisions  affect  an  essential 
element  of  the  election,  or  unless  it  is  ex- 
pressly declared  by  the  statute  that  the  par- 
ticular act  is  essential  to  the  validity  of  an 
election,  or  that  its  omission  shall  render  it 
void.  Parvin  v.  Wimberg,  130  Ind.  561,  30 
N.  E.  790,  and  15  L.  R.  A.  775;  Boyd  v.  Mills, 
53  Kan.  594,  608,  37  Pac.  16,  and  25  L.  E.  A. 
486 ;  Miller  v.  Pennoyer,  23  Or.  364,  31  Pac. 
830;  Stackpole  v.  Hallahan,  16  Mont.  40,  40 
Pac.  80,  and  28  L.  R.  A.  502 ;  Blankinship  v. 
Israel,  132  111.  514,  24  N.  E.  615;  Adsit  v. 
Osmun,  84  Mich.  420,  48  N.  W.  31,  and  11 
L.  R.  A.  534;  McCrary,  Elect.  §§  27-29;  Endl. 
Interp.  St.  §  433.  In  the  16  Mont.,  40  Pac, 
case,  it  was  held  that  the  statute  prescribing 
certain  facts  to  be  stated  in  the  certificate  of 
nomination  is  not  to  be  held  mandatory  in  a 
case  where  the  nomination  has  been  duly 
made,  the  certificate  filed,  the  name  pkced 
upon  the  ballot,  the  candidate  voted  for  and 
elected  by  a  plurality  of  all  the  legal  votes 
cast,  and  when  the  effect  of  giving  a  man- 
datory construction  to  such  provision  would 


168  ELECTION  T.AWS 

be  to  disfranchise  a  plurality  of  the  voters 
of  the  district.  A  statute  providing  that  to 
entitle  a  political  party  to  make  nomination 
by  a  convention,  it  must  have  polled  at  the 
next  i^receding  election  2  per  cent  of  the  vote 
of  the  county,  is  directory  and  not  manda- 
tory, after  the  election.  Schuler  v,  Hogan, 
1G8  111.  ?S9,  48  N.  E.  195.  If  one  of  the 
judges  of  election  proceeds  throughout  his 
duties  without  taking  the  oath  prescribed  by 
law,  or  if  one  of  the  superintendents  of  elec- 
tion, after  the  polls  are  closed,  but  before  the 
votes  are  counted,  leaves  the  precinct  and  the 
other  twx)  count  the  votes  and  sign  the  certifi- 
cate, the  returns  thus  certified  should  not  be 
excluded  from  the  consolidated  vote  of  the 
county  because  not  signed  by  all  three  of  the 
superintendents  as  provided  by  law,  nor 
should  they  be  excluded  because  one  of  the 
superintendents  left  before  the  count.  Tan- 
ner V.  Deen  (Ga.)  33  S.  E.  832.  The  statute 
of  Pennsylvania  provides  that  the  name  of 
any  candidate  shall  not  appear  more  than 
once  upon  the  ballot.  Gunster  was  severally 
nominated  by  the  Democratic  and  Eepub- 
lican  parties  for  the  office  of  judge,  and  his 
name  placed  by  the  supervisors  of  election 
on  both  tickets  upon  the  official  ballot  for 
that  office;  and  it  was  held  that  'after  the 


ELECTIOX  CONTESTS  169 

qualified  electors  had  declared  their  choice 
by  the  use  of  the  only  ballots  they  could  have 
used, '  the  election  of  Gunster  was  not  thereby 
invalidated.  Com.  v.  McCormick,  8  Pa.  Dist. 
R.  117.  It  was  held  in  Boyd  v.  Mills,  53 
Kan.  594,  37  Pac.  16  and  25  L.  R.  A.  486, 
that  the  mistaken  use  of  colored  sample  bal- 
lots by  all  the  voters  of  a  precinct  did  not 
vitiate  the  election."  ^° 

Notes 

1.  Cooley's  Constitutional  Limitations, 
Chapter  XVII. 

2.  Devons  et  al.  vs.  Gallatin  County  et 
al.,  244  111.  40;  Moore  vs.  Mayfield  47  111. 
187 ;  People  vs.  Smith,  51  111.  323,  55  N.  E.  M. ; 
Douglas  vs.  Hutchinson,  183  111.  323,  55  N.  E. 
628 ;  Brueggeman  vs.  Young,  208  111.  181,  70 
N.  E.  292 ;  Williamson  vs.  Lowe,  527  111.  235. 

3.  219  111.  326,  76  N.  E.  Rep.  371. 

4.  Stine  vs.  Berry.  27  S.  W.  Rep.  809,  16 
Ky.  Law  Rep.  279. 

5.  See  Section  47. 

6.  "Courts  of  Equity  had  taken  juris- 
diction under  their  general  powers  for  the 
sole  reason  that  there  was  an  absence  of 
necessary  legislation  for  a  contest  by  any 
other  means,  but  when  the  Legislature  pro- 
vided a  method  of  contesting  such  an  election 
there  ceased  to  be  any  ground  for  interfer- 
ence by  a  Court  of  Equity  under  its  general 


170  ELECTION  LAWS 

powers,  and  the  jurisdiction  has  not  since 
been  exercised."  Devons  et  al.  vs.  Gallatin 
County  et  al.,  244  111.  40;  18  Am.  &  Eng.  Ann. 
Cases  422. 

7.  Clarke  vs.  Rogers,  81  Ky.  43. 

8.  27  La.  Ann.  698. 

9.  Clarke  vs.  Rogers,  81  Ky.  43 ;  Savage 
vs.  AYolfe,  68  Ala.  569. 

10.     Jones  vs.  State,  153  Ind.  440,  55  N.  E. 
229. 

Section  47.    Quo  Warranto. 

The  general  scope  of  the  action  of  qno 
warranto,  which  can  be  brought  to  test  the 
right  of  an  individual  to  hold  a  public  office, 
or  of  a  corporation  to  exercise  pul)lic  or 
quasi  public  functions,  is  broad  enough  so 
that  in  many  States  it  is  available  to  test  the 
legality  of  an  official's  election.  The  right 
to  use  this  writ  in  election  contests,  as  well 
as  the  scope  of  its  application,  if  it  can  be 
used,  depends  very  largely  upon  the  statutes 
of  the  several  States,  and  on  this  point,  as 
on  many  others  in  election  laws,  the  statute 
of  the  particular  States  must  he  consulted. 
Under  the  most  favorable  conditions  there 
are  disadvantages  and  limitations  in  the  use 
of  this  writ;  in  particular  the  action  can 
only  be  brought  against  a  person  already  in 
office.^     It  can  never,  therefore,  be  used  to 


ELECTION  CONTESTS  171 

determine  an  election  contest  in  time,  so  that 
the  legally  elected  candidate  can  enter  into 
the  possession  of  the  office  at  the  beginning 
of  the  term.  There  is  considerable  conflict 
among  the  decisions  on  the  question  by  whom 
may  this  action  be  brought.  Originally,  in 
England,  the  law  was  very  plain  that  this  ac- 
tion could  be  brought  only  by  the  govern- 
ment.^ During  the  Stuart  period  in  English 
history  this  writ  was  one  of  the  most  effective 
weapons  of  despotism,  being  used  to  take 
away  their  charters  from  nearly  all  the 
English  cities  and  from  some  of  the  Amer- 
ican colonies. 

By  statute  of  9  Anne  it  was  provided  that 
an  information  in  the  nature  of  quo  warranto 
might  be  brought,  with  leave  of  the  court,  at 
the  relation  of  any  person  desiring  to  prose- 
cute the  same  against  any  person  usurping, 
intruding  into,  or  unlawfully  holding  any 
franchise  or  office  in  any  city,  borough,  or 
incorporated  town.  The  operation  of  this 
statute,  however,  is  confined  to  cases  where 
the  public  at  large  is  not  interested.^ 

In  some  States  of  this  country  a  private 
person  is  permitted  to  bring  quo  warranto 
proceedings  by  virtue  of  this  statute  of  9 
Anne;*  while  in  other  States  statutes  have 
been  passed  to  this  effect.     It  has  been  very 


172  ELECTION  LAWS 

generally  held  that  under  these  State  stat- 
utes this  action  of  quo  warranto  can  only 
be  brought  by  a  private  person  in  cases  where 
he  has  a  special  interest  in  the  office.'^ 

''Taxpayers  of  the  district  affected  by  the 
office  have  been  held  to  have  such  an  interest.*^ 
It  has  also  been  held  that  a  citizen,  resident 
and  taxpayer,  who  is  the  father  of  pupils  in 
the  public  schools  of  a  city,  may  maintain 
an  action  to  oust  the  members  of  the  board 
of  school  directors."  But  a  defeated  candi- 
date has  been  held  not  to  have  such  an  inter- 
est in  the  office  as  justifies  him  in  attempting 
to  oust  the  incumbent  on  the  ground  of 
ineligibility.^  Likewise,  a  police  justice 
whose  fees  have  been  diminished  by  prosecu- 
tions for  violations  of  munieipal  ordinances 
before  a  municipal  judge,  has  not  such  an 
interest  in  the  latter 's  office  as  warrants  him 
in  maintaining  an  information."  ^  '^^ 

Under  some  State  statutes,  not  even  a  can- 
didate for  an  office  can  bring  quo  warranto 
proceedings  to  test  the  title  of  his  opponents 
until  he  has  first  asked  the  proper  public 
prosecuting  officer  to  bring  such  suit,  and  has 
met  with  a  refusal. ^^ 

The  granting  or  refusal  of  leave  to  file  an 
information  in  the  nature  of  quo  warranto, 
at  the  instance  of  a  private  person  to  test 


ELECTION  CONTESTS  173 

the  right  to  a  public  office,  has  been  held  to 
rest  in  the  sound  discretion  of  the  court  to 
which  application  is  made.^^ 

The  weight  of  authority,  especially  among 
recent  cases,  is  to  the  effect  that  where  there 
is  no  State  statute  on  the  subject  a  private 
person  can  not  bring  quo  warranto  proceed- 
ings against  any  public  official.  On  this 
point  the  Supreme  Court  of  Idaho  said  in 
Toncray  vs.  Budge  :^^ 

''To  allow  any  and  every  citizen  to  com- 
mence an  action  against  any  public  official 
to  oust  him  from  office  at  any  time  he  may 
see  fit,  whether  for  private  and  personal  re- 
venge or  the  public  weal,  would  be  most  dis- 
astrous, dangerous,  and  prejudicial  to  the 
public  service.  In  some  communities,  and 
under  certain  conditions,  they  might  keep  a 
public  officer  engaged  most  of  the  time  de- 
fending his  right  to  the  office  instead  of 
discharging  the  public  business.  This  rem- 
edy was  created  for  the  benefit  and  protec- 
tion of  the  public  in  its  governmental  and 
sovereign  capacity,  and  for  the  benefit  of  the 
community  at  large,  rather  than  for  the 
gratification,  satisfaction,  or  protection  of 
any  particular  individual  other  than  one  him- 
self entitled  to  the  office.  The  law-making 
power,  in  recognizing  the  right  and  prescrib- 


174  ELECTION  LAWS 

ing  the  remedy  to  iiK|uire  into  the  conditions 
and  circumstances  under  which  one  claims  to 
hold  an  office,  had  the  clear  and  unquestion- 
able authority  to  also  designate  the  party  or 
parties  avIio  might  invoke  this  remedy,  and 
the  conditions  under  which  it  might  be 
applied."  ^^' 

All  quo  warranto  proceedings  relative  to 
the  title  of  the  United  States  officials  must 
be  brought  to  the  Federal  Courts.^^ 

Notes 

1.  Scott  vs.  State,  151  Ind.  556,  52  X.  E. 
Rep.  Ki:}. 

2.  Atty.-Gen.  vs.  SuUivan,  l(io  ^iass.  44(), 
40  X.  E.  Rep.  Si:i;  State  vs.  Ashley,  1  Ark. 
279;  State  vs.  Elliott,  13  Utah.  200.  44  Pae. 
Rep.  248;  State  vs.  Dahl,  60  Minn.  109,  71 
X.  AV.  Rep.  910. 

3.  Commonwealth  vs.  Lexington  etc. 
Turnpike  Road  Co.,  6  B.  Mon.  (Ky.)  397. 

4.  Id. 

5.  State  vs.  Stein,  13  Xeb.  529,  14  X.  AY. 
Rep.  481;  State  vs.  Boal,  46  Mo.  528;  Bar- 
num  vs.  Oilman,  27  Minn.  466,  8  X.  W.  Rep. 
375;  Painter  vs.  United  States,  6  Ind.  Terr. 
621,  98  S.  W.  Rep.  352. 

6.  State  vs.  Sanuielson,  131  Wis.  499,  111 
X.  W.  712.  See  also  McAVilliams  vs.  Jacobs, 
128  Ga.  375,  57  S.  E.  509. 


ELECTION  CONTESTS  175 

7.  State  vs.  Lindemann,  132  Wis.  47,  111 
N.  W.  214. 

8.  State  vs.  Bell,  169  Ind.  61,  82  N.  E.  69, 
13  L.  R.  A.  N.  S.  10-13,  124  Am.  St.  Rep. 
203;  Hudson  vs.  Conklin,  77  Kan.  764,  93 
Pac.  585.  See  also  State  vs.  Johnson,  28 
Ohio  Cir.  Ct.  793. 

9.  Baughman  vs.  Nation,  76  Kan.  668,  92 
Pac.  548. 

10.  13  Am.  &  Eng.  Annotated  Cases,  1064 
Note. 

11.  Boyd  vs.  Nebraska,  143  U.  S.  135; 
State  vs.  Frazier,  28  Neb.  438,  44  N.  W.  Rep. 
471. 

12.  Rex.  vs.  Trenever,  2  B.  &  Aid.  479; 
Commonwealth  vs.  McCarter,  98  Pa.  St.  607. 

13.  14  Idaho  621,  95  Pac.  Rep.  26. 

14.  Wallace  vs.  Anderson,  5  Wheaton  291 ; 
State  vs.  Bower,  8  S.  Car.  400. 

Section  48.    Mandamus 

Mandamus  is  an  important  auxiliary  pro- 
ceeding in  election  contests ;  but  is  seldom 
available  as  a  method  by  wliicli  the  main 
issue  in  an  election  contest  can  be  tried.  As 
in  all  other  cases  mandamus  can  be  used  in 
election  contests  only  for  the  purpose  of  com- 
pelling the  jDerformance  of  a  mere  ministerial 
act. 

Where  there  can  be  no  dispute  as  to  the 
plaintiff's  right  to  the  office  sought,  man- 


17G  ELECTION  LAWS 

damus  is  the  jjroper  remedy.     In  Lewis  vs. 
Whittle^  the  court  said: 

''Wherever  there  is  a  right  to  execute  an 
office,  perform  a  service,  or  exercise  a  fran- 
chise, more  especially  if  it  be  a  matter  of 
public  concern,  and  a  person  is  dispossessed 
of  such  right  and  has  no  other  sijecific  ade- 
quate remedy,  then  the  court  ought  to  assist 
by  mandamus  upon  reasons  of  justice,  as 
expressed  by  the  writ,  and  upon  reasons  of 
jDublic  policy,  to  preserve  the  peace,  good 
order,  and  good  government.  It  ought  to  be 
used  on  all  occasions  when  the  law  has  estab- 
lished no  specific  remedy.  Whatever  may  be 
the  rule  elsewhere,  it  may  be  safely  laid  down 
as  the  doctrine  of  this  court  that  mandamus 
is  the  true  specific  remedy  for  a  wrongful 
deprivation  of  an  office.  What  other  specific 
adequate  remedy  have  these  petitioners,  if 
they  are  clearly  entitled  to  this  office  ?  If,  as 
suggested,  quo  warranto  should  be  adopted, 
and  the  petitioners  should  succeed  there, 
they  would  not  thereby  be  put  in  possession 
of  what  they  seek,  but  might  still  be  put  to 
the  necessity  of  mandamus  for  relief.  They 
might  succeed  by  quo  warranto  in  removing 
their  adversaries  from  the  office,  and  yet  need 
the  mandamus  to  put  them  in  possession. 
No  proceeding  that  will  give  them  less  than 


ELECTIOxX  CONTESTS  177 

they  ask  can  be  said  to  afford  tliein  a  specific 
and  adequate  remedy,  if  they  are  entitled  to 
what  tliey  seek.  Under  the  quo  warranto 
information,  judgment  might  remove  the 
occupants,  but  would  not  install  the  claim- 
ants. They  might  still  find  it  necessary  to 
ask  other  process  against  some  other  person 
or  office  who  might  deem  it  his  or  their  duty 
to  keep  them  out. ' ' 

Mandamus  is  therefore  the  proper  remedy 
to  restore  a  civil  service  appointee  who  has 
been  improperly  removed  f  but  can  never  be 
used  to  try  a  disputed  title  to  office.  In  Pratt 
vs.  Board  of  Police^  the  court  said : 

"It  is  also  insisted  for  respondent  that  the 
appellant  has  mistaken  his  remedy,  and  that 
mandamus  will  not  lie  to  restore  him  to  office, 
because,  since  his  removal,  another  person 
has  had  charge  thereof.  Mandamus  is  an 
extraordinary  remedy,  and  the  law  is  well 
settled  that  it  will  not  lie  to  try  a  disputed 
title  to  an  office,  or  to  compel  the  admission 
of  a  claimant  to  an  office  the  title  to  which 
is  in  dispute,  and  of  which  he  has  never  dis- 
charged the  duties  or  had  the  possession. 
Where  a  person,  however,  has  been  in  the 
actual  and  lawful  possession  of  an  office,  re- 
ceived and  enjoyed  the  emoluments  thereof, 
is  entitled  to  the  office  de  jure,   and  was 


178  ELECTION  LAWS 

unlawfully  removed  therefrom,  a  different 
rule  appears  to  prevail.  In  such  case  man- 
damus is  an  appro]H-iate  remedy  to  restore 
the  de  jure  officer  to  his  office,  and  it  is  not 
necessary  to  resort  to  quo  warranto,  even 
though  the  office  he  in  possession  of  another." 

The  cases  where  the  writ  of  mandamus 
will  and  will  not  lie  in  election  contests  have 
been  summarized  as  follows: 

'^ Mandamus  will  lie  to  comi^el  the  desig- 
nation of  the  newspapers  in  which  the  list  of 
registration  and  polling  places  is  to  be  pub- 
lished,^ to  compel  statement  of  the  result  of 
a  primary  election/'  to  compel  the  proper  offi- 
cers to  receive  and  file  a  certificate  of  nomi- 
nations,^ to  conii)el  the  officer  charged  with 
that  duty  to  order  an  election,"  to  compel  the 
placing  upon  the  official  ballot  the  name  of  a 
nominee,^  to  compel  the  appointment  of 
legally  selected  judges  of  election,'^  to  compel 
registrars  of  votes  not  to  count  an  improp- 
erly marked  ballot, ^^  to  compel  a  canvassing 
board  to  canvass  the  returns  and  issue  certifi- 
cates in  accordance  with  the  result,^  ^  and  to 
compel  a  recount  ;^-  but  the  writ  will  not  issue 
to  compel  election  officers  to  do  an  im]~>ossible 
or  an  unnecessary  tiling,^"  to  compel  regis- 
trars of  election  to  erase  from  the  i-egistra- 
tion  books  the  names  of  persons  illegally  reg- 


ELECTION  CONTESTS  179 

istered  where  the  statutes  do  not  confer^^  or 
where  the  persons  alleged  to  be  illegally  reg- 
istered have  not  been  brought  into  court  or 
served  with  notice/^  or  to  control  the  action 
of  a  canvassing  board  in  recounting  the 
votes. ^''  An  election  contest  cannot  be  de- 
termined in  mandamus  })roeeedings/'  Man- 
damus proceedings  to  compel  a  mayor  and 
council  to  canvass  the  returns  of  a  municipal 
election  may  be  instituted  by  a  candidate 
claiming  election^^  or  by  any  citizen. ^'^  In 
Massachusetts  a  voter  and  taxpayer  of  a 
town  may  institute  mandamus  proceedings  to 
compel  the  registrars  of  voters  not  to  count 
an  imi^roperly  marked  ballot  cast  at  a  local 
option  election. ^*^  Two  candidates  on  the 
same  ticket  chiiming  election  may  join  in  a 
petition  for  mandamus  to  compel  a  canvass 
of  the  returns  and  issuance  of  certificates  of 
election.-^  Mandamus  proceedings  to  com- 
pel the  performance  of  a  duty  incumbent 
upon  a  board  of  officers  should  be  brought 
against  the  l)oard  as  such  and  not  against 
the  members  as  individuals.^-  The  mayor  of 
a  town  who  is  the  presiding  officer  of  the 
council  is  a  proper  party  to  mandamus  jDro- 
ceedings  to  compel  the  council  to  canvass  the 
returns  of  a  municipal  election.-^  The  peti- 
tion for  mandamus  must  designate  the  duty 


180  ELECT lOX   LAWS 

sought  to  bo  enforced-^  and  state  facts  suf- 
ficient to  warrant  its  enforcement.^'  In 
Washington,  where  mandamus  issues  to  com- 
pel a  town  council  to  canvass  the  returns  of 
an  election,  service  of  the  writ  on  a  majority 
of  the  council  is  sufficient.-"  Where  man- 
damus is  issued  to  compel  a  canvassing  board 
to  canvass  the  returns  of  an  election  costs 
may  be  awarded  against  the  board.^^  The 
fact  that  election  officers  have  performed 
some  of  the  acts  commanded  by  mandamus 
does  not  i)reclude  their  appealing  from  the 
order  granting  the  writ."  -^  -^ 

Notes 

1.  77  Virginia  415. 

2.  Hill  vs.  Boston,  19.3  Mass.  569,  79  N.  E. 
Rep.  825. 

3.  15  Utah  1,  49  Pac.  Rep.  747. 

4.  Where  it  is  shown  that  no  legal 
designation  has  been  made  by  the  Board 
of  Elections,  the  Court  may,  notwithstand- 
ing the  prayer  for  an  order,  require  that 
a  particular  newspaper  be  designated,  com- 
mand the  board  to  perform  the  duty  de- 
volving on  it  by  law.  People  vs.  Voorhis, 
115  App.  Div.  218,  100  N.  Y.  927. 

5.  To  compel  Board  of  Registry  and  Elec- 
tion to  make  up  and  sign  such  statement 
as  is  required  by  P.  L.  1903,  p.  617,  p,  15. 


ELECTION  CONTESTS  Igi 

Freeman  vs.  Registry  and  Election  of  Me- 
tuchen  (N.  J.  Law),  67  A.  713.  In  sndi 
case  the  ballot  boxes  may  be  opened  if  such 
statement  cannot  be  prepared  without  do- 
ing so.     Id. 

6.  Cosgriff  vs.  San  Francisco  Election 
Com'rs  (Cal.),  91  P.  98. 

7.  Jenny  vs.  Alden,  79  Vt.  156,64  A.  609. 

8.  Robinson  vs.  McCandless,  29  Ky.  L.  R. 
1088,  96  S.  W.  877.  One  to  whom  a  certificate 
of  nomination  has  been  issued.  State  vs. 
Goff,  129  Wis.  668,  109  N.  W.  628. 

9.  People  vs.  Edgar  County  Sup'rs,  223 
111.  187,  79  N.  E.  123. 

10.  Under  Rev.  Laws,  c.  11,  p.  421,  the 
Supreme  Judicial  Court  has  jurisdiction  to 
issue  mandamus  to  compel  registrars  not  to 
count  such  a  ballot  cast  at  a  local  option 
election.  Brewster  vs.  Sherman  (Mass.),  80 
N.  E.  821. 

11.  Lehman  vs.  Pettingell  (Colo.),  39  P. 
48;  State  vs.  Mason  (Wash.),  88  P.  126. 

12.  Laws,  1896,  p.  964,  c.  909,  P.  111. 
People  vs.  Beam,  183  N.  Y.  266,  80  N.  E.  921. 

13.  Where  "questioned"  ballots  were 
lodged  with  Clerk  of  County  Court  for  safe 
keeping,  but  had  not  been  preserved  in  man- 
ner required  by  law,  it  was  held  mandamus 
would  not  issue  to  require  election  of  offi- 
cers to  assemble  and  certify  as  to  whether 


182  ELKCTIOX  LAW8 

such  ])allots  returned  to  them  had  been 
counted,  and  if  so,  for  whom.  Childress  vs. 
Pinson  (Ky.),  100,  S.  W.  278.  Mandamus  will 
not  issue  to  compel  election  officers  to  sign 
certificates  attached  to  stub  book  from  their 
precinct,  where  duplicate  certificate  used  by 
election  commissioners  in  canvassing  returns 
has  been  presented  and  signed  by  officers. 
Id. 

14.  Shannon's  Code,  pp.  5335,  5337.  State 
vs.  Willett,  127  Tenn.  334,  97  S.  W.  299. 

15.  Adequate  remedy  is  given  by  Code, 
1904,  pp.  83a,  86.  Spitler  vs.  Guy  (Va.)  58 
S.  E.  769. 

16.  If  the  recount  is  erroneous  the  remedy 
by  quo  warranto  is  open.  Dickenson  vs.  Che- 
boygan County  Canvassers,  148  Mich.  513,  15 
Det.  Leg.  N,  196,  111  X.  W.  1075. 

17.  Lauritsen  vs.  Segard,  99  Minn.,  313, 
109  N.  W.  404.  Mandamus  cannot  be  in- 
voked to  settle  a  doubtful  claim  to  an  of- 
fice or  to  have  the  title  to  an  office  adjudi- 
cated upon  as  between  adverse  claimants. 
Hoy  vs.  State  (Ind.),  81  N.  E.  509. 

18.  Candidate  claiming  election  to  council. 
State  vs.  Kendall  (Wash.),  87  P.  821. 

19.  State  vs.  Mason  (Wash.),  88  P.  126. 

20.  Rev.  Laws,  c.  192,  p.  5.  Brewster  vs. 
Sherman  (Mass.).  80  X.  E.  821. 

21.  Candidate  claiming  election  to  a  mu- 


ELECTION  CONTESTS  183 

nieipal  council,  i^tate  vs.  Kendall  (Wash.), 
87  P.  821.  The  candidates  for  Sherift*  and 
Treasurer  of  a  county  on  the  same  ticket  may 
join,  under  Code  Civ.  Prac,  p.  10.  Lehman 
vs.  Pettingell  (Colo.),  89  P.  48. 

22.  I\landamus  proceedings  to  compel  call- 
ing of  election  to  vote  upon  disincorporation 
of  a  city,  as  required  by  Henning's  Gen. 
Lawp.,  989.  p.  1,  must  be  brought  against 
Board  of  Trustees.  Taylor  vs.  Burke  (Cal. 
App.),  91  P.  814. 

23.  State  vs.  Kendall  (Wash.),  87  P.  821. 

24.  Where  petition  is  for  mandamus  to 
compel  inspectors  of  town  meeting  to  .de- 
clare and  clerk  to  enter  result  of  meeting, 
if  inspectors  have  failed  to  count  ballots, 
such  count  is  fairly  within  prayer  of  peti- 
tion, and  proceedings  will  not  fail  because 
it  is  not  expressly  requirested.  People  vs. 
Armstrong,  116  App.  Div.  103,  101  N.  Y.  S. 
712. 

25.  Petition  for  mandamus  to  erase  from 
registration  books,  residents  and  members 
of  Soldiers'  Home  will  not  be  granted  wdiere 
names  of  such  persons  are  not  stated  and 
some  of  them  are  entitled  to  registration. 
State  vs.  Willett,  117  Tenn.  334,  97  S.  W.  299. 
Petition  for  mandamus  to  compel  election 
commissioners  to  place  the  names  of  nomi- 
nees upon  official  ballot  under  name  and 
device  of  a  certain  party  is  insufficient  if  it 


384  ELECTION  LAWS 

fails  to  allege  that  certificate  of  nomination 
designated  such  title  and  device  as  required 
by  Burn's  Ann.  St.  1901,  p.  6215.  State 
vs.  Board  of  Election  Comrs.  of  ^Marshall 
County,  1G7  Ind.  276,  78  N.  E.  1016. 

26.  Pierce's  Code,  pp.  1420,  3521.  State 
vs.  Kendall  (Wash.)  87,  p.  821. 

27.  Costs  awarded  against  board  where 
writ  issued  at  suit  of  candidate  claiming 
election.  State  vs.  Kendall  (Wash.)  87,  p. 
821  M. 

28.  People  vs.  Voorhis,  186  N.  Y.  263; 
78  N.  E.  1001. 

29.  Current  Law,   Vol.   9,   pp.   1052-4. 

Section  49.    Right  of  Private  Persons  to  Enforce 

Public  Right  or  Duty  Relative  to  Elections 

by  Writ  of  Mandamus 

' '  There  is  a  great  weight  of  American  au- 
thority in  favor  of  the  doctrine  that  any 
private  person  may  move,  without  the  inter- 
vention of  the  attorney  general,  for  a  writ  of 
mandamus  to  enforce  a  i^ublic  duty  not  due 
to  the  government  as  such. ' '  ^ 

In  the  great  majority  of  States,  as  an  ap- 
plication of  this  principle  it  is  held  that  a 
private  person,  as  relator,  may  enforce  by 
mandamus,  a  public  right  or  duty  relating 
to  elections  without  showing  any  special  in- 


ELECTION  CONTESTS  185 

terest  which  he  possesses  in  the  results  of 
the  election  distinct  from  the  interest  of  the 
public.- 

In  Texas  it  has  been  held  that  an  individual 
need  not  sue  as  relator,  but  may  bring  the 
suit  in  his  own  name.^ 

In  Michigan,  on  the  other  hand,  a  private 
individual  must  show  some  special  and  dis- 
tinct interest  in  himself  in  the  result  of  the 
election,  in  order  to  be  permitted  to  enforce 
public  rights,  relative  to  such  election,  by 
mandamus.^ 

In  some  jurisdictions,  under  statutes  pro- 
viding that  the  writ  of  mandamus  may  issue 
on  the  application  of  the  party  beneficially 
interested,  it  has  been  held  that  a  private  per- 
son is  beneficially  interested,  and  as  relator 
may  enforce  by  mandamus  a  public  right  or 
duty  relating  to  elections,  without  showing 
an  interest  therein  ditferent  from  the  interest 
of  the  public  at  large.^ 

Notes 

1.  Chief  Justice  Gray  in  Attorney  Gen- 
eral vs.  Boston,  123  Mass.  460,  479. 

2.  Brewster  vs.  Sherman  et  al.,  195  Mass. 
222;  11  Am.  and  Eng.  Ann.  Cases,  417;  Rizer 
vs.  People,  18  Colo.  App.  40,  69  Pac.  Rep. 
315;    State    vs.    Mason,    45    Wash.    234,    88 


180  ELECTION  LAWS 

Pac.  Rop.  121):  Stale  vs.  Jefferson  County. 
17  Fla.  707 ;  ("onnnonwealth  vs.  Tree,  4  Phila. 
362;  State  vs.  St.  Louis  Public  Schools,  134 
.Mo.  296;  35  S.  W.  Rep.  617;  State  vs.  Shrop- 
shire, 4  Neb.  411. 

3.  Kimbery  vs.  Morris,  87  Tex.  637,  313  S. 
^Y.  Rep.  808. 

4.  Debridge  vs.  Green,  29  Mich.  121; 
Smith  vs.  Saginaw,  81  Mich.  123,  45  N.  W. 
Rep.  964. 

5.  Note  to  Am.  and  Eng.  Ann.  Cases, 
Vol.  11,  p.  420.  Chumasero  vs.  Potts,  2 
Mont.  242 ;  State  vs.  Brown,  38  Ohio  St.  344 ; 
State  vs.  Tanzey,  49  Ohio  St.  656,  38  N.  E. 
Rep.  750;  State  vs.  Lien,  9  S.  Dak.  297,  68 
N.  W.  Rep.  748.  See  also  Smith  vs.  Law- 
rence, 2  S.  Dak.  185,  49  N.  W.  Rep.  7. 

Section  50.     Certiorari 

Certiorari  is  a  remedy  which  may  occa- 
sionally be  used  to  advantage  in  election 
contests. 

Certiorari  may  be  brought  to  annul  an 
injunction,  on  the  ground  that  it  is  issued 
without  jurisdiction,  where  the  remedy  by 
api)eal  is  inadequate;  as,  for  example,  in  the 
case  of  an  injunction  restraining  the  use  of 
voting  machines  where  appeal  cannot  be 
heard  until  after  election.^ 

Ballot  boxes  containing  ballots,  keys  and 


ELECTION  CONTESTS  187 

reports  of  election  officials  are  not  judicial 
records  reviewable  under  a  writ  of  cer- 
tiorari.- 

Notes 

1.  United  States  Standard  Voting  ^la- 
chine  Company  vs.  Hobson,  132  Iowa  38,  109 
N.  ^Y.   Rep.  458. 

2.  State  vs.  Reynolds,  190  Mo.  578,  89 
S.  W.  877. 

Section  51.     Prohibition 

Tlie  writ  of  prohibition  can  be  seldom  used 
in  election  contests.  It  will  not  lie  to  pre- 
vent ministerial  acts  ;^  to  prevent  a  person 
from  holding  an  office  to  which  he  is  not 
entitled;-  or  to  prevent  a  chancery  judge 
from  issuing  an  injunction  in  election  cases. ^ 

The  writ  may  be  used  to  prevent  can- 
vassing boards  from  exercising  judicial 
powers.^ 

Notes 

1.  Greir  vs.  Taylor,  4  McCord  L.  (S.  Car.) 
206. 

2.  Bucker  vs.  Verive,  63  Cal.  304. 

3.  Ex  parte  Reid,  50  Ala.  439. 

4.  Brazie  vs.  Fayette  County,  25  W.  Va. 
23. 


188  ELECTION  LAWS 

Section  52.     Injunctions 

A  court  of  equity  may  issue  an  injunction 
in  matters  relative  to  elections,  the  same  as 
in  other  controversies.  The  proper  use  of 
injunctions  in  election  matters,  however,  has 
a  limited  scope. 

''An  injunction  will  be  granted  to  restrain 
a  county  clerk  from  certifying  to  judges  of 
election,  fraudulent  and  fictitious  registra- 
tions,^ and  a  temporary  injunction  will  issue 
to  restrain  a  county  committee  for  party  pri- 
maries,^ but  an  injunction  will  not  issue  to 
direct  or  control  the  mode  in  which  an  elec- 
tion shall  be  held^  to  restrain  the  placing  of 
the  names  of  candidates  duly  nominated  upon 
the  official  ballot  on  the  ground  that  there  is 
no  vacancy  to  be  filled  at  the  election,^  or  to 
restrain  a  county  clerk  from  canvassing  the 
vote  on  the  question  of  granting  a  franchise 
on  the  ground  that  the  election  was  illegal.^ 
In  Colorado,  the  district  court  has  jurisdic- 
tion to  issue  an  injunction  to  restrain  the 
county  clerk  from  certifying  to  judges  of 
election  fraudulent  and  fictitious  registra- 
tions made  by  him.^  Any  member  of  a  po- 
litical party  may  sue  to  enjoin  the  county 
committee  of  such  party  from  enforcing  an 
illegal  system  of  enrollment  for  party  pri- 
maries."    The   complaint   in   an   action   for 


ELECTION  CONTESTS  180 

injunction  must  allege  facts  sufficient  to  con- 
stitute a  cause  of  action."  ^  ^ 

In  Dickey  vs.  Reed,^^  the  court  held  that  a 
court  of  chancery  has  no  power  to  restrain, 
by  injunction,  a  board  of  canvassers  from 
canvassing  the  returns  of  an  election,  where 
the  law  under  which  the  election  was  held, 
neither  in  terms  nor  by  implication  confers 
such  power,  and  where  there  are  no  facts 
before  the  court  which  requires  it  to  take 
judicial  cognizance,  and  hear,  adjudicate  and 
decree. 

"Whilst  the  writ  of  injunction  is  one  of  the 
most  important  in  the  law,  and  is,  in  fact, 
indispensable  to  the  complete  administration 
of  justice,  it  is  liable  to  great  abuse,  and  it 
would  not  be  wise,  nor  would  it  promote  jus- 
tice, to  extend  its  use  to  cases  of  doubtful 
right,  or  to  accomplish  ends  where  there  are 
other  adequate  remedies. 

"A  writ  of  injunction,  issued  in  a  matter 
where  the  court  could  not,  under  any  circum- 
stances, have  power  to  hear,  determine  and 
decree  in  reference  to  such  matter,  is  coram 
non  judice,  and  void. 

''Where  a  writ  of  injunction  is  issued  by  a 
court  which  has  power  over  the  subject  mat- 
ter, and  authority  to  take  jurisdiction,  it  must 
be  obeyed,  but  where  the  power  of  the  court 


190  ELECTION   LAWS 

is  wholly  wanting,  the  writ  is  void,  and  can 
legally  operate  on  no  one,  nor  can  any  one  be 
punished  for  contempt  for  disobeying  it. 

"It  was  not  designed,  when  the  funda- 
mental law  of  the  State  was  framed,  that 
either  department  of  government  should  in- 
terfere with  or  control  the  other,  and  it  is 
for  the  political  power  of  the  State,  within 
the  limits  of  the  constitution  to  provide  the 
manner  in  which  elections  shall  be  held,  and 
how  they  shall  be  contested,  and  the  courts 
can  not  interfere." 

If  a  court  of  equity  issues  an  injunction 
relative  to  any  aspect  of  an  election,  and  such 
injunction  is  beyond  the  power  of  the  court, 
the  officials  against  whom  the  injunction  is 
issued  may  disregard  it,  without  being  in 
contemi3t  of  court  for  such  disobedience." 

In  some  casee  the  question  as  to  whether 
an  injunction  can  properly  be  issued  is  com- 
plicated by  the  presence  of  other  elements 
than  those  directly  concerned  with  the  sub- 
ject of  elections.  The  problem  is  not  unlike 
that  relative  to  injunctions  against  criminal 
acts.  It  was  formerly  held,  by  an  unbroken 
line  of  decisions,  that  no  injunction  would  lie 
against  the  commission  of  a  criminal  act. 
The  recent  decisions  have  modified  this  to 


ELECTION  CONTESTS  191 

the  extent  of  holding  that  if  a  threatened  act 
will  interfere  with  property  rights  it  may 
properly  be  enjoined,  even  althongh  the  act 
may  also  constitute  a  crime.  It  would  seem 
as  if  a  like  principle  would  be  properly  ap- 
jDlicable  in  election  cases.  In  other  words,  a 
court  of  equity  may  properly  enjoin  a  threat- 
ened trespass  upon  property,  even  although 
there  is  involved  indirectly  an  election  dis- 
pute, in  relation  to  which  equity  would  have 
no  authority  to  issue  an  injunction.  Under 
this  theory  an  equity  court  might  enjoin  any 
interference  with  the  possession  of  a  hall,  in 
which  a  meeting  of  a  political  convention  had 
been  called. 

Notes 

1.  Granting  such  an  injunction  does  not 
violate  Const.  Art.  2,  p.  5,  which  declares 
"that  all  elections  shall  be  free  and  open, 
and  that  no  poAver,  civil  or  military,  shall  at 
any  time  interfere  to  prevent  the  free  exer- 
cise of  the  right  of  suffrage."  Aiehels  vs. 
People   (Colo.)  90,  p.  1122. 

2.  Brown  vs.  Cole,  54  Misc.  278,  104  N.  Y. 
109.  But  a  permanent  injunction  will  not 
be  granted  restraining  chairman  of  such  a 
committee  from  putting  into  operation  cer- 
tain alleged  illegal  rules  and  regulations  for 
conduct  of  primaries,  where  primaries  have 


192  ELECTION  LAWS 

been  held  and  there  was  no  effort  to  enforce 
such  rules  and  regulations  are  in  force  or 
threatened  to  be  enforced.  (Brown  vs.  Cole, 
105  N.  Y.  S.  196),  but  upon  dismissal  of 
such  suit,  if  the  rules  and  regulations  are 
illegal,  no  costs  will  be  allowed.     (Id.) 

3.  Injunction  will  not  issue  to  restrain 
use  of  voting  machines.  United  States  Stand- 
ard Voting  Mach.  Co.  vs.  Hobson,  132  Iowa 
38,  109  N.  AV.  458. 

4.  Sherlock  vs.  District  Ct.  (Colo.)  38,  p. 
396. 

5.  Such  question  can  be  determined  in 
the  proceeding  provided  by  Civ.  Code,  p.  289, 
to  test  validity  of  franchise.  Vickery  vs. 
Wilson  (Colo.)  90,  p.  1034.  Such  an  injunc- 
tion will  not  be  granted  because  pending 
determination  of  validity  of  franchise  by 
proceedings  in  quo  warranto,  plaintiff  will 
suffer  loss  from  depreciation  of  value  of  his 
stock  in  a  rival  company.     Id. 

6.  Aichele  vs.  People  (Colo.)  90,  p.  1122. 

7.  Brown  vs.  Cole,  54  Misc.  278,  104  N.  Y. 
S.  109. 

8.  Facts  alleged  in  complaint  in  action  to 
enjoin  county  committee  of  political  party 
from  enforcing  illegal  system  of  enrollment 
for  party  primaries  held  to  constitute  cause 
of  action.  Brown  vs.  Cole,  54  Misc.  278,  104 
N.  Y.  S.  109. 

9.  Current  Law,  Vol.  IX,  p.  1054. 


ELECTION  rOX TESTS  193 

10.  78  111.  261. 

11.  Walton  vs.  Develing,  61  111.  201 ;  Darst 
vs.  People,  62  111.  806. 

Section  53.    Right  of  Contestant  for  Office  to 

Enjoin  Incumbent  from  Performing-  Public 

Duties  Pending  Election  Contest 

Where  opposing  candidates  for  public  office 
both  claim  to  have  been  elected  to  the  office, 
an  injunction  restraining  the  party  who  has 
possession  of  the  office  from  exercising  the 
functions  pertaining  thereto,  pending  an  in- 
vestigation of  the  claims  of  the  parties,  will 
not  be  granted  at  the  suit  of  the  adverse 
claimant.  The  courts  are  harmonious  upon 
this  point. ^ 

In  Vette  vs.  Byington,  the  court  said :  ' '  It 
is  a  rule,  long  established  in  this  State,  and 
indeed  it  is  a  general  rule  .  .  .  that  a 
court  of  chancery  will  not  interfere  by  injunc- 
tion, before  a  trial  at  law,  in  favor  of  an 
officer  de  jure  against  an  illegal  claim  when 
the  latter  is  already  in  possession  of  the 
office. ' ' 

The  strongest  and  soundest  reason  for  this 
legal  principle  is  one  based  upon  public  pol- 
icy, as  great  public  inconvenience  would 
result  if  the  exercise  of  the  duties  of  the 
office  were  suspended.^  Another  reason  for 
this  rule  is  found  in  the  existence  of  a  plain, 


194  ELECTION  LAWS 

complete  and  adequate  remedy  at  law,  either 
under  statutory  provisions  regulating  elec- 
tion contests,  or  by  quo  warranto  proceed- 
ings.^ 

In  Gilroy  vs.  Appeal,^  the  court  said : 

''The  only  jDroper  remedy  by  which  such 
questions  may  be  determined  in  quo  war- 
ranto, which  is  a  plain,  simple,  adequate,  and 
complete  remedy.  It  is  no  more  cumbrous 
or  dilatory  than  the  remedy  of  injunction, 
and  it  is  much  more  comprehensive,  comj^lete 
and  appropriate.  And  the  equitable  juris- 
diction to  restrain  by  injunction  will  never  be 
exercised  where  another  plain  and  adequate 
remedy  exists." 

''While  equity  has  no  jurisdiction  to  de- 
termine the  right  to  hold  and  exercise  a 
public  office,  the  appropriate  remedy  being 
by  quo  warranto  proceedings,  yet  where  the 
parties  have  agreed  ujoon  the  record  to  waive 
the  question  of  jurisdiction  and  the  court 
below  has  considered  the  case  as  if  it  had 
been  brought  before  it  by  writ  of  quo  war- 
ranto, a  decree  awarding  an  injunction  will 
be  regarded  as  equivalent  to  a  judgment  of 
ouster  in  quo  warranto  proceedings."  ^ 

In  a  few  States  the  question  has  arisen  as 
to  whether  the  State  statutes  autliorized  the 
issuance  of  an  injunction  in  this  class  of  con- 


ELECTION  CONTESTS  195 

troversies;  in  all  the  cases  on  this  point  it 
was  decided  that  the  injunction  was  not 
authorized^ 

Notes 

1.  Note  to  Am.  and  Eng.  Ann.  Cases,  Vol. 
XVI,  p.  1052,  citing  Alabama,  Little  vs.  Bes- 
semer, 138  Ala.  127,  35  So.  64;  Arkansas, 
Lucas  vs.  Futrall,  84  Ark.  540,  106  S.  W. 
667;  Colorado,  Lawson  vs.  Hays,  39  Colo. 
250,  89  Pac.  968 ;  Georgia,  Davis  vs.  Dawson, 
90  Ga.  817,  17  S.  E.  110;  Illinois,  Deemar 
vs.  Boyne,  103  111.  App.  464  (see  also  Burgess 
vs.  Davis,  138  111.  582,  28  N.  E.  817,  affirming 
37  111.  App.  353)  ;  Indiana,  Beal  vs.  Ray,  1 
Ind.  554;  Iowa,  Vette  vs.  Byington,  132  la. 
487,  109  N.  W.  1073 ;  Kansas,  State  vs.  Dur- 
kee,  12  Kan.  308 ;  Kentucky,  see  the  reported 
case ;  Louisiana,  State  vs.  Rost,  47  La.  Ann. 
65,  16  So.  780;  Minnesota,  Burke  vs.  Leland, 
51  Minn.  355,  53  N.  W.  716;  Mississippi, 
Moore  vs.  Caldwell,  Freem.  222;  Missouri, 
State  vs.  Withrow,  154  Mo.  397,  55  S.  W. 
460;  Nebraska,  State  vs.  Kearney,  28  Neb. 
103;  New  York,  People  vs.  Farley,  1  How. 
Pr.,  N.  S.  71;  North  Carolina,  Jones  vs. 
Granville,  77  N.  C.  280;  Ohio,  Harding  vs. 
Eichinger,  57  Ohio  St.  371,  49  N.  E.  306; 
Pennsylvania,  Hagner  vs.  Heyberger,  7  W. 
&  S.  104,  42  Am.  Dec.  220;  So.  Carolina, 
State  vs.  Rice,  66  S.  C.  1,  44  S.  E.  80 ;  Tennes- 
see, Adcock  vs.  Houk,  122  S.  W.  979 ;  Texas, 


196  ELECTION  LAWS 

jMcAlU'ii  vs.  Rhodes,  G5  Tex.  348;  Virginia, 
Kilpatrick  vs.  Siiiitli,  77  Va.  347;  West  Vir- 
ginia, Swinbnrn  vs.  Smith,  15  W.  Va.  483. 

2.  132  la.  487,  109  N.  W.  1073. 

3.  Patterson  vs.  Hubbs,  65  N.  C.  119. 

4.  Deeinar  vs.  Boyne,  103  111.  App.  464; 
Harding  vs.  Eichinger,  57  Ohio  St.  371,  48 
N.  E.  306;  Hotehkiss  vs.  Keek,  84  Neb.  545, 
121  N.  W.  579. 

5.  100  Pa.  St.  5. 

6.  Hayes  vs.  Sturges,  215  Pa.  St.  605,  64 
Atl.  828. 

7.  Patterson  vs.  Ilubbs,  65  X.  C.  119; 
State  vs.  Alexander,  107  la.  177.  77  N.  W. 
841 ;  State  vs.  Herreid.  105  N.  D.  16,  71  N.  W. 
319. 

Section  54.     Contests  Before  Legislative  Bodies 

The  courts  do  not  have  the  power  to  try 
contested  elections  involving  seats  in  the 
Congress  of  the  United  States,  or  in  the  State 
Legislature.  The  Constitution  makes  each 
house  of  Congress,  the  judge  of  the  elections, 
returns  and  qualifications  of  its  members.^ 
Either  house  can  decide  all  questions  both 
of  law  and  of  fact  necessary  to  determine  the 
right  of  any  individual  who  may  claim  to  be 
one  of  its  members.-  The  returns  from  the 
State  authorities  are  only  prima  facie  evi- 
dence.^   A  decision  made   bv  either  house 


ELECTION  CONTESTS  197 

cannot  be  reconsidered  and  reversed."*  The 
courts  have  no  jurisdiction  over  questions 
involving  the  right  to  a  seat  in  either  branch 
of  Congress.^ 

The  Constitutions  of  the  different  States 
contain  provisions  similar  to  that  in  the  Fed- 
eral Constitution.  In  a  number  of  States 
inferior  legislative  bodies  are  also  given  the 
right  to  judge  of  the  election  and  returns  of 
their  members.'^ 

Every  legislative  body  which  has  the  power 
to  pass  upon  the  returns  and  qualifications 
of  its  members  may  (in  the  absence  of  ex- 
press constitutional  or  statutory  provisions 
on  the  subject)  adopt  either  general  rules  of 
procedure  for  all  such  cases,  or  special  rules 
for  each  particular  case. 

Notes 

1.  United  States  Constitution,  Art.  I,  Sec. 
V,  Clause  T. 

2.  Baker  vs.  Bart,  El.  Cases  92. 

3.  Spaiilding  vs.  Mead,  CI.  &  H.,  El.  Cases 
157. 

4.  The  Louisiana  Cases,   Taft   El.   Cases, 
426;  Corbin  vs.  Butler,  Taft  El.  Cases,  582. 

5.  State  vs.  Crawford,  28  Fla.  441  ;  McDill 
vs.  Board  of  State  Canvassers,  36  Wis.  505. 

6.  Foley  vs.   Tyler,   161   111.   167;  People 


198  ELECTION  LAWS 

VS.  Bingham,  82  Cal.  238;  People  vs.  Essex 
County,  69  Hun,  (N.  Y.)  406;  Stearns  vs. 
Wyoming,  53  Ohio  St.  352. 

Section  55.     Grounds  for  Election  Contests 

The  grounds  upon  which  election  contests 
may  be  based  are  so  numerous  and  divers 
that  it  is  difficult  to  give  any  complete  classi- 
fication or  enumeration  of  them.  Fraud  of 
one  kind  or  another  in  election  is  the  most 
general  ground  for  election  contests.  There 
is  a  marked  difference  in  its  effect  upon  the 
election  of  fraud  perpetrated  by  election  of- 
ficials, and  fraud  at  the  election  committed 
by  third  persons,  without  any  guilt  on  the 
part  of  the  election  officials.  Fraud  by  the 
judges  and  clerks  of  election  will  make  the 
whole  returns  from  a  precinct  valueless.^  A 
case  of  fraud  and  illegality,  however,  may 
be  made  without  in  any  way  implicating  the 
election  officials.- 

Fraud  by  third  persons  merely  destroys 
the  prima  facie  accuracy  of  the  returns  and 
the  true  vote  may  be  shown  by  evidence.^ 
The  cases  are  not  in  entire  harmony  as  to 
exactly  where  the  burden  of  proof  will  rest 
in  such  cases. 

' '  The  rule  of  purging  the  poll  bj^  deducting 
the  illegal  votes   proportionately   from  the 


ELECTION  CONTESTS  199 

different  candidates,  cannot  properly  be 
adopted  in  cases  of  fraud,  as  this  would  give 
the  fraudulent  party  the  benefit  of  one-half 
of  the  fraudulent  votes,  and  deduct  from  the 
honest  party  the  same  number.  Therefore, 
where  there  is  no  evidence  by  which  an  exact, 
or  nearly  exact,  legal  result  can  be  reached, 
the  whole  poll  should  be  rejected,  in  which 
case  each  party  will  receive  the  vote  which 
he  proves  to  have  been  cast  for  him ;  but  this 
rejection  of  the  whole  poll  should  never  be 
permitted  where  the  true  result  can  be  other- 
wise reached. "  *  ^ 

It  is  an  old  principle  of  the  Common  Law, 
and  it  is  set  out  in  the  Constitution  of  many 
of  the  States  of  the  country,  that  all  elections 
ought  to  be  free,  and  violence  and  intimida- 
tion will  therefore  be  a  sufficient  basis  for 
setting  aside  elections  or  for  rejecting  the 
votes  of  certain  precincts.^ 

It  is  a  well  established  principle  that  the 
State  militia  should  never  be  used  at  the 
polls  on  election  day  except  when  such  dras- 
tic action  is  absolutely  necessary  to  prevent 
the  holding  of  an  election  being  prevented  by 
violence ;  and  furthermore,  that  such  militia, 
except  in  cases  of  absolute  necessity,  should 
not  be  called  out  on  election  day  even  for 
purposes  entirely  unconnected  with  election. 


200  ELECTION  LAWS 

The  revised  statutes  of  the  United  States''' 
prohibits  the  bringing  of  armed  troops  to 
the  polling  place  except  to  keep  the  peace  or 
to  repel  the  armed  enemies  of  the  United 
States.  The  use  of  the  police  at  polling- 
places  is  unfortunately  generally  necessary 
to  a  certain  degree,  but  any  intimidation  on 
the  part  of  the  police,  deputy  sheriff,  mar- 
shal, or  other  similar  officer,  will  be  just  as 
effective  to  vitiate  an  election  as  an  interfer- 
ence by  the  regular  army.^ 

The  rule  as  to  the  degree  of  intimidation 
or  violence  which  will  be  sufficient  to  thus 
vitiate  an  election  is  not  unlike  the  rule  as 
to  the  degree  of  intimidation  or  force  neces- 
sary to  render  a  contract  voidable  on  the 
ground  of  duress.  In  the  case  of  elections, 
the  intimidation  or  violence  must  be  of  such 
a  character  and  degree  that  a  man  of  ordi- 
nary firmness  and  courage  would  be  deterred 
from  voting.  The  intimidation  need  not  be 
in  the  nature  of  threats  of  physical  violence. 
It  has  been  held  that  where  there  was  a  com- 
bination on  the  pai't  of  employers  to  threaten 
their  workingmen  witli  the  loss  of  their  occu- 
pation unless  they  voted  as  directed,  this  was 
sufficient  to  render  the  election  void  if  the 
intimidation  was  extensive  enough  to  affect 
the    result.''     It    has    even    been    held    that 


ELECTION  CONTESTS  201 

threats  of  sociaP'^  or  religioiis^^  ostracism 
may  have  such  an  effect  in  intimidating 
voters  as  to  render  an  election  void. 

Bribery  is  a  sufficient  ground  for  setting- 
aside  an  election.^-  A  great  deal  of  confu- 
sion often  arises  from  the  fact  that  two  en- 
tirely different  legal  principles  as  to  bribery 
are  confused  together.  One  rule  of  law  has 
to  do  with  the  effect  of  briliery  in  disqualify- 
ing a  candidate  guilty  of  such  an  act  from 
holding  the  office  to  which  he  has  been 
elected;  and  the  second  relates  to  the  viti- 
ation of  the  election  itself  on  account  of  the 
bribery  both  by  Common  Law  and  statute  in 
England,^  ^  and  by  Constitutional  or  statutory 
provisions  in  most  of  the  States  in  this  coun- 
try.^^  Bribery  by  a  candidate  personally  or 
by  any  i^erson  in  his  behalf  with  his  knowl- 
edge or  consent  disqualifies  such  candidate 
from  holding  the  office  to  which  he  is  elected. 
In  such  cases  the  number  of  the  votes  bought, 
or  the  question  as  to  whether  or  not  such 
votes  could  change  the  result  of  the  election 
are  absolutely  immaterial.  The  guilty  can- 
didate is  disqualified  as  a  punishment  for  his 
illegal  act  and  not  on  the  ground  that  he  did 
not  receive  a  majority  of  the  votes  legally 
cast.  The  rule  is  very  different  where  the 
bribery  is  by  a  third  person  with  no  proved 


202  ELECTION  LAWS 

authority  or  consent  from  the  candidate  him- 
self. If  tlie  l)ril)ery  is  general  enough  it  ma}' 
in  an  extreme  case  be  a  sufficient  ground  for 
holding  the  election  void  or  to  throw  out  the 
entire  vote  of  certain  precincts  or  election 
districts.  A  more  general  result  is  the  rejec- 
tion of  the  votes  which  have  been  so  bought. ^•''' 

In  State  vs.  Olin/*^  the  Supreme  Court  of 
Wisconsin  said: 

''In  our  form  of  government,  where  the 
administration  of  public  affairs  is  regulated 
by  the  will  of  the  people,  or  a  majority  of 
them,  expressed  through  the  ballot  box,  the 
free  exercise  of  the  elective  franchise  by  the 
qualified  voters  is  a  matter  of  the  highest 
importance.  The  safety  and  perpetuity  of 
our  institutions  depend  upon  this.  It  is, 
therefore,  particularly  important  that  every 
voter  should  be  free  from  any  pecuniary  in- 
fluence. For  this  reason  the  attempt  by 
bribery  to  influence  an  elector  in  giving  his 
vote  or  ballot  is  made  an  indictable  offense. 
.  .  .  Can  a  vote  thus  obtained,  in  direct 
violation  of  the  statute,  be  considered  a  valid 
or  a  legal  vote?  If  it  can,  then  the  very  object 
of  the  statute,  which  is  that  it  shall  not  be 
so  obtained,  is  defeated.  We  are  of  opinion 
that  such  votes  are  illegal  and  that  the  judge 
was  right  in  directing  the  jury  to  disregard 


ELECTION  CONTESTS  203 

them.  This  conclusion  is  sustained  by  the 
authorities,  so  far  as  we  have  been  able  to 
find  any." 

While  a  candidate  may  legally  employ  per- 
sons to  work  for  him  in  his  campaign  as  can- 
vassers, speakers,  etc.,  such  employment  may 
constitute  bribery  where  the  real  purpose  of 
the  employment  was  to  secure  the  vote  rather 
than  the  services  of  the  persons  employed.^" 
Or  where  the  person  employed  is  compelled 
as  a  condition  for  such  securing  such  employ- 
ment to  agree  to  vote  for  the  candidate 
employing  him.^^ 

The  making  of  a  loan  to  a  voter,^''  or  even 
the  payment  of  a  past  debt,-°  may  be  suf- 
ficient to  constitute  bribery  when  the  loan 
or  the  payment  is  for  the  purpose  of  in- 
fluencing the  vote  of  the  person  receiving  it. 

The  sale  of  goods  for  a  price  far  below  the 
true  value  of  the  article,  or  the  purchase  of 
goods  far  above  their  value  may  constitute 
bribery.-^ 

In  a  Wisconsin  case,^-  where  a  candidate 
had  agreed  to  perform  the  duties  of  the  office 
for  four  hundred  dollars  less  than  the  com- 
pensation allowed  by  law,  it  was  held  that 
while  this  did  not  technically  constitute  brib- 
ery, still  it  was  so  strongly  against  public 


204  ELECTION  LAWS 

policy  that  the  votes  seeui-ed  through  this 
promise  should  be  rejected. 

In  addition  to  the  forms  of  bribery  already 
referred  to,  there  are  an  almost  unlimited 
number  of  other  indirect  methods  of  bribery 
which  would  be  sufficient  to  invalidate  any 
votes  which  may  be  secured  thereby.  It  is 
said  that  the  use  of  undue  influence  upon 
voters  may  be  sufficient  either  to  render  the 
election  void  or  to  throw  out  certain  votes. 
The  scope  of  the  doctrine  is  very  vague  and 
uncertain  and  the  ])ossibility  for  such  undue 
influence  has  boon  mainly  done  away  with 
by  the  adoption  of  the  Australian  ballot  sys- 
tem, and  the  principle  is  of  little  importance 
in  this  country. 

Eelief  will  not  be  granted  on  a  doubtful 
showing^^  to  review  a  void  election,-^  or  to 
change  what  could  not  change  the  result.-^ 

Notes 

1.  Knox  Coimty  vs.  Davis,  6.3  111.  40.5. 

2.  Whaley  vs.  Thompson.  L")  Tex.  Ct.  Rep. 
207,  93  S.  W.  Rep.  212. 

.3.  Knox  County  vs.  Davis.  63  111.  405; 
Foley  vs.  Tyler,  161  111.  167:  Wa<ihbnrn  vs. 
Voorhis,  2  Bart.  El.  Cas.  54. 

4.  Le]\loyne  vs.  Farwell,  Smith  El.  Cas. 
411. 


ELECTION  CONTESTS  205 

5.  10  American  and  Eng.  Encyc.  of  Law, 
p.  775. 

6.  Jones  vs.  Glidewell,  53  Ark.  161 ;  Hodge 
vs.  Jones,  43  S.  W.  41. 

7.  Section  2002. 

8.  English  vs.   Peele,  48   Cong.   H.   Rep. 
1547. 

9.  Duffy  vs.  Mason,  1  Ellsw.  El.  Cas.  362. 

10.  Richardson  vs.  Rainey,  1  Ellsw.  El. 
Cas.  233. 

11.  Trench  vs.  Nolan,  6  Ir.  Rep.  C.L.  464. 

12.  Whaley  vs.  Thomason,  15  Tex.  Ct. 
Rep.,  93  S.  W.  Rep.  212. 

13.  In  re  Launceston  Election  Petition 
L.  R.,  9  C.  B.  626. 

14.  State  vs.  Elting,  29  Kan.  397;  State 
vs.  Collier,  72  Mo.  13 ;  State  vs.  Dustiu,  5 
Oregon  375. 

15.  Commonwealth  vs.  Shaiier,  3  W.  &  S. 
(Pa.)  338;  White's  Contested  Election,  4  Pa. 
Dist.  Rep.  363. 

16.  23  Wis.  327. 

17.  Reg.  vs.  Stewart,  16  Ont.  Rep.  583. 

18.  Abbott  vs.  Frost,  Smith  El.  Cas.  Tor; 
Gloucester  Case,  20  Mai.  &  H.  El.  Cases  62. 

19.  Lynne  vs.  Regis,  1  P.  R.  &  B.  El. 
Cas.  35. 

20.  McKay  vs.  Glen,  Ilodgin's  Election 
Cas.  751. 

21.  Bergin  vs.  Macdouald,  Ilodgin's  Elec- 
tion Cas.  547. 


206  ELECTION  LAWS 

22.  State  vs.  Purdy,  36  Wis.  213. 

23.  In  re  Slattery,  100  N.  Y.  S.  419. 

24.  Phillips  vs.  Brynus,  39  So.  911. 

25.  In  re  Burrell,  100  N.  Y.  S.  470. 

Section  56.     Effect  of  Irregularity  or  Fraud  in 

Nomination  of  Candidate  Upon  the  Validity 

of  Election 

Tlie  American  rule  is  that  all  questions  as 
to  irregularities  or  fraud  in  the  nomination 
of  candidates  to  be  voted  upon  in  any  elec- 
tion must  be  raised  prior  to  such  election, 
and  that  the  title  of  a  person  legally  chosen 
at  the  election  cannot  be  assailed  on  account 
of  any  flaw  in  the  legality  of  his  nomination.^ 

In  Attorney-General  vs.  Campbell,^  the 
Supreme  Court  of  Massachusetts  said :  "We 
are  of  opinion  that,  while  the  provisions  as 
to  holding  caucuses  for  the  nomination  of 
candidates  and  as  to  the  filing  of  nomination 
papers  are  binding  upon  the  officers  for  whose 
guidance  they  are  intended,  they  may  be 
disregarded  in  determining  the  validity  of  a 
subsequent  election,  if  it  plainly  appears  that 
the  will  of  the  majority  of  the  electors  is 
fairly  expressed  by  their  ballots." 

''The  following  irregularities  have  been 
held  not  to  invalidate  elections :  Nominations 
made  by  person  or  political  party  not  entitled 


ELECTION  CONTESTS  207 

to  make  nominations;"  nomination  to  fill  va- 
cancy caused  by  resignation  of  candidate, 
nomination  not  being  made  in  proper  man- 
ner;^ party  nomination  improperly  made  by 
petitions  f  nomination  papers  altered  by  can- 
didate, no  fraud  being  shown  f  failure  to  call 
caucus  in  proper  manner ;"  failure  to  file  cer- 
tificate of  nomination;^  failure  to  file  certifi- 
cate in  time;''  failure  to  set  out  in  certificate 
what  statute  required  ;^*^  failure  to  acknowl- 
edge properly  certificate  of  nomination  ;^^ 
failure  on  part  of  clerk  to  make  proper  pub- 
lication of  nominations."  ^-  ^^ 

The  generdl  principle  of  the  law  here  in- 
volved is  well  stated  in  the  case  of  Jones  vs. 
State,^"*  as  follows : 

''It  is  the  duty  of  the  courts  to  uphold  the 
law  by  sustaining  elections  thereunder  that 
have  resulted  in  a  full  and  fair  expression  of 
the  public  will,  and,  from  the  current  of 
authority,  the  following  may  be  stated  as  the 
approved  rule:  All  provisions  of  the  elec- 
tion law  are  mandatory  if  enforcement  is 
sought  before  election  in  a  direct  proceeding 
for  that  purjDose;  but  after  election,  all 
should  be  held  directory  only,  in  support  of 
the  result,  unless  of  a  character  to  effect  an 
obstruction  to  the  free  and  intelligent  cast- 
ing of  the  vote,  or  to  the  ascertainment  of  the 


208  ELECTION  LAWS 

result,  or  unless  the  provisions  alTect  an  es- 
sential element  of  the  election,  or  unless  it  is 
oxpressh'  declared  ])y  the  statute  that  the 
particular  act  is  essential  to  the  validity  of 
an  election,  or  that  its  omission  shall  render 
it  void. ' ' 

The  lilnglish  rule  on  this  question  is  con- 
trary to  the  American  rule,  it  being  held  in 
England  that  the  validity  of  an  election  may 
be  destroyed  by  irregularities,  or  fraud,  in 
the  nomination  of  candidates. ^^ 

Notes 

1.  Territory  ex  rel  AVillis  vs.  Kanealii,  17 
Hawaii  243. 

2.  191  Mass.  497,  78  X.  E.  Rep.  144. 

3.  Sehuler  vs.  Hogan,  168  111.  3(i9,  48  N.  E. 
Rep.  195;  Bowers  vs.  Smith,  111  Mo.  4:),  20 
S.  W.  Rep.  102,  overruled  IMcKay  vs.  ^Nlinner, 
154  Mo.  608,  55  S.  W.  Rep.  866.' 

4.  Baker  vs.  Scott,  4  Idaho  596,  43  Pac 
Rep.  76;  Kulp  vs.  Bailey  (Tex.,  1905),  89 
S.  W.  Rep.  957. 

5.  State  vs.  Fransham.  10  Mont.  273,  48 
Pac.  Rep.  1. 

6.  State  vs.  Bunnell  (Wis.,  1907),  110 
N.  W.  Rep.  177. 

7.  Atty.  Gen.  vs.  Campbell,  191  :\Iass. 
497,  78  N.  E.  Rep.  133. 

8.  Peabody  vs.  Nurch  (Kan.,  1907),  89 
Pac.  Rep.  1016. 


ELEt'TlOxX  CONTESTS  209 

9.  Blackmer  vs.  Hildreth,  181  Mass.  29, 
03  X.  E;  Rep.  14;  State  vs.  Deputy  State  Su- 
pervisors, 9  Ohio  Cir.  Dec.  427. 

30.  OAven  vs.  Milhoan,  72  Kan.  701,  83 
Pae.  Rep.  1044. 

11.  Jones  vs.  State,  153  Ind.  440,  55  N.  E. 
Rep.  229.  See  also  Bragdon  vs.  Navarre,  102 
Mich.  259,  60  N.  W.  Rep.  277. 

12.  Allen  vs.  Glynn,  17  Colo.  338,  29  Pae. 
Rep.  670. 

13.  7  American  and  English  Annotated 
Cases,  840  note. 

14.  153  Ind.  440,  55  N.  E.  Rep.  229. 

15.  Reg.  vs.  Parkinson,  L.  R.  3  Q.  B.  11. 

Section  57.    Pleading  and  Evidence  in  Election 
Contests 

Pleadings  in  election  cases  do  not  strictly 
follow  the  rules  of  either  Common  Law. 
Equity  or  Code  Pleading,  but  much  more 
closely  resemble  the  last  two  systems  of 
pleading  than  the  first. 

In  the  statutory  provisions  relative  to 
election  contests  the  forms  of  the  pleadings 
are  generally  not  treated,  A  plain  statement 
of  the  facts  upon  which  the  complainant  relies 
for  relief  are  generally  sufficient. 

An  election  contest,  being  a  special  pro- 
ceeding, the  facts  giving  the  court  jurisdic- 


2]0  KLKCTIOX   LAWS 

tion  must  appear  upou  the  face  of  the  plead- 
ings.^ 

A  person  contesting  tlie  election  of  an 
officer  must  always  set  out  in  his  pleading 
that  he  was  a  candidate  for  the  same  office.^ 
A  bill  of  particulars  may  be  ordered  where 
the  petition  does  not  set  out  the  irregularities 
with  sufficient  particularities.^  A  petition  in 
an  election  contest  may  be  bad  as  being  too 
indefinite.  As  for  example  a  petition  which 
alleged  that  the  election  judges  in  each  and 
every  precinct  threw  out  a  large  number  of 
legal  votes  given  to  the  contestant,  for  the 
reason  that  the  cross  was  not  placed  in  the 
proper  position.'*  In  another  case  the  allega- 
tion that  ''a  number  of  illegal  votes  had  been 
polled  for  the  incumbent  against  the  contest- 
ant" w^as  also  held  to  be  too  indefinite.^ 

The  allegation  that  "a  large  number  of 
legal  voters  desired  and  attempted  to  cast 
their  votes,  but  with  the  knowledge,  consent 
and  connivance  of  the  judges  of  election,  were 
by  violence  and  threats  prevented  from  so 
doing"  was  also  held  to  be  too  indefinite.^ 

In  some  cases  it  has  been  held  that  it  is 
necessary  to  allege  that  the  illegalities  com- 
plained of  changed  the  result,'  while  in  other 
cases  it  has  been  held  that  this  need  not  be 
alleged.^ 


ELECTION  CONTESTS  211 

In  Nickols  vs.  Eagsdale'^  the  ground  of  con- 
test filed  in  a  proceeding  to  contest  an  elec- 
tion for  sheriff  stated  that  the  contestor  re- 
ceived 1,716  votes,  and  the  contestee  1,719 
votes ;  that  illegal  votes  were  cast  for  the  con- 
testee in  eight  townships  of  the  county,  and 
that,  but  for  such  illegal  votes,  the  contestor 
would  have  been  elected.  Held  that,  as  illegal 
votes  were  cast  for  the  contestee  in  eight 
townships,  the  number  of  such  votes  could 
not  have  been  less  than  eight,  and  as  these, 
taken  from  the  vote  of  the  contestee,  would 
show  that  the  contestor  was  entitled  to  the 
office,  the  grounds  of  contest  were  well 
stated. 

"An  election  petition  which  sets  forth  mere 
conclusions  of  law,  and  not  of  fact,  which 
alleges  mere  irregularities  in  relation  to  the 
qualification  of  the  election  officers,  time  of 
opening  the  polls,  etc.,  and  which  avers  that 
votes  were  irregularly  received,  without  set- 
ting forth  facts  which  would  show  that  the 
rejection  of  these  votes  would  change  the 
result,  will  be  quashed,  as  it  does  not  set  forth 
affirmative  averments  of  fact  from  which  the 
court,  if  the  facts  alleged  were  admitted  or 
proved  to  be  true,  can  determine  that  the 
petitioners  were  entitled  to  the  relief  prayed 
for,  or  to  some  relief."  ^^ 


212  ELECTION  LAWS 

The  complainant  must  allege  that  he  was 
lawfully  elected  to  the  office,  but  it  is  not  fatal 
if  he  fails  to  allege  that  he  is  eligible  to  such 
office.^  ^ 

The  method  and  form  of  the  necessary 
pleading  to  be  filed  by  the  defendant  in  an 
election  contest  depends  mainly  upon  the  con- 
stitution of  the  different  states,  and  differs 
greatly  in  the  different  jurisdictions.  Thus, 
in  Alabama  it  is  not  necessary  for  the  de- 
fendant to  tile  any  i)lea  to  the  contestant's 
statement.^-  In  Illinois  the  defendant  may 
set  up  any  defense  which  shows  that  the  com- 
plainant is  not  entitled  to  the  relief  he  seeks. ^•' 

In  contested  election  cases,  tried  before  the 
courts,  the  ordinary  rules  of  evidence  are  en- 
forced; but  in  contested  elections,  tried  be- 
fore legislative  assemblies,  the  rules  restrict- 
ing the  admission  of  evidence  are  very  great- 
ly relaxed. ^^ 

The  returns  of  an  election  or  the  certificate 
based  upon  them,  if  they  are  regular  in  form 
are  prima  facie  evidence  of  the  facts  stated 
on  their  face.^^  However,  if  the  l)allots  have 
been  preserved,  they  are  better  evidence  than 
the  returns  and  should  be  recounted  where 
there  is  a  contest.'^'  But,  before  a  recount 
should  be  allowed  to  })revail  over  the  original 
returns,  it  must  be  siiown  that  the  ballots 


ELECTTOX  CONTESTS  213 

have  not  been  tampered  witli.'"  The  mere 
fact  that  the  ballots  have  not  been  kept  in  the 
manner  prescribed  by  law  does  not  neces- 
sarily render  them  inadmissible  as  evidence/* 
bnt  does  throw  npon  the  person  seeking  to 
introdnce  them  the  bnrden  of  proof  to  show 
that  they  have  not  been  tampered  with.^^  The 
statutory  provisions  as  to  the  keeping  of 
ballots  are  directory  and  not  mandatory.  In 
Hughes  vs.  Holman,-"  the  court  said:  "It  is 
true  that  returns  should  be  guarded  with 
jealous  care,  and  all  the  forms  of  law  should 
be  observed,  but  these  rules  are  only  direc- 
tory. ...  If  the  rule  were  otherwise  and 
all  the  statutory  provisions  mandatory,  the 
precinct  canvassing  board  might  falsify  the 
returns,  and  by  that  means  perpetuate  in 
office  or  elect  any  person  whom  they  choose. 
The  only  act  necessary  upon  the  part  of  the 
judges  and  clerks  of  election  for  this  purpose 
would  be  to  send  the  ballots  cast  by  some 
unauthorized  person  to  the  county  clerk,  and 
it  would  not  matter  if  it  could  be  shown  by 
the  testimony  of  a  multitude  of  unimpeach- 
able witnesses  that  such  person  had  exer- 
cised the  greatest  care  that  the  ballots,  when 
delivered  to  the  county  clerk,  were  in  the 
exact  condition  as  when  received,  such  evi- 
dence could  not  be  admitted  to  overcome  the 


214  ELECTION  LAWS 

prima  facie  correctness  of  the  returns.  There 
would  be  neither  reason  nor  justice  in  such  a 
rule. ' ' 

Poll  books,  if  required  by  law  to  be  kept, 
are  the  best  evidence  as  to  who  voted. -^  If 
the  poll  books  are  still  in  existence  and  come 
from  the  proper  custody,  no  other  evidence  is 
admissible  to  show  who  voted.--  If  no  poll 
books  were  kept,  or  if  they  have  been  de- 
stroyed, or  are  rejected  as  evidence  on 
account  of  fraud  or  other  reason,  other  evi- 
dence may  be  introduced  as  to  who  voted. 

In  general,  evidence  may  be  received  as  to 
the  existence  of  any  fact,  which,  if  proved, 
would  render  the  election  void,  throw  out  the 
entire  vote  of  the  precinct  or  throw  out  any 
individual  vote.  Evidence  may  be  introduced 
to  show  that  any  of  the  voters  alleged  to  have 
voted  did  not  live  in  the  precinct  or  were 
otherwise  unqualified,  or  did  not  themselves 
cast  the  vote.  The  "best  evidence  rule"  is 
recognized  and  followed  in  the  trial  of  elec- 
tion cases, 2^  although,  perhaps,  not  as  rigidly 
as  in  other  legal  proceedings.  The  rule 
against  hearsay  evidence  is  strictly  followed. 
Public  rumors,  newspaper  reports,  etc.,  as  to 
the  number  of  votes  cast,  etc.,  are  not  admis- 
sible. The  opinions  of  witnesses  are  not  ad- 
missible unless  the  question  is  one  upon  which 


ELECTION  CONTESTS  215 

exjDert  testimony  may  properly  be  intro- 
duced.-^ Tims,  in  Pattern  vs.  Coates,-^  it 
was  held  by  the  Supreme  Court  of  Arkansas 
that  witnesses  should  not  be  permitted  to  give 
their  opinion  as  to  whether  an  election  was 
free  or  fairly  conducted. 

Where  the  election  returns  are  illegal  or 
wanting,  secondary  evidence  may  be  intro- 
duced to  show  the  actual  vote ;  and  any  candi- 
date may  introduce  evidence  to  prove  the 
votes  cast  for  him.-*^ 

Notes 

1.  Gihespie  vs.   Dion,   18  Mont.   183,   44 
Pac.  Rep.  954. 

2.  Edwards  vs.  Knight,  8  Ohio  375. 

3.  Mann  vs.  Cassidy,  1  Brewst.  11. 

4.  Smith  vs.  Harris,  18  Colo.  274,  32  Pac. 
Rep.  616. 

5.  Lunsford  vs.  Culton,  15  Ky.  Law  Rep. 
504. 

6.  Soper  vs.  Sibley  County  Commission- 
ers, 46  Minn.  274,  48  N.  W.  Rep.  112. 

7.  Lanier  vs.  Galatos,  13  La.  Ann.  175. 

8.  Steele  vs.  Martin,  6  Kan.  430. 

9.  28  Ind.  131. 

10.  In  re  Contested  Election  of  Burke,  22 
Pitts.  Leg.  J.  193. 

11.  Rutledge  vs.  Crawford,  91  Cal.  526,  27 
Pac.  Rep.  779. 


216  KI.KCTIOX  LAWS 

12.  Griffen  vs.  Wall,  :VZ  Ala.  149. 

13.  Talkington  vs.  Turner,  71  111.  284. 

14.  Stiiupson  vs.  Breed,  —  and  R.  (IMass. 
El.  Cas.)  260. 

15.  People  vs.  Thaeker,  7  Laws  (N,  Y, 
274)  ;  Territory  vs.  Pyle,  1  Oregon  149;  Peo- 
ple vs.  Miller,  16  Mich.  56. 

16.  Beall  vs.  Albert,  159  111.  127 ;  Newton 
vs.  Newell,  26  Minn.  529. 

17.  :Murphy  vs.  Bottle,  155  111.  182 ;  Coglar 
vs.  Beard,  65  Cal.  58;  Gooding  vs.  Wilson, 
Smith  Kl.  Cas.  79. 

18.  Hughes  vs.  Hartman.  23  Oregon  482; 
Apple  vs.  Barcroft,  168  111.  649. 

19.  Kingery  vs.  Berry,  94  111.  515. 

20.  23  Oregon  981. 

21.  Newark's  Case.  1  Fras  El.  Cas.  277. 

22.  Olive  vs.  O'Rilet,  Minor  (Ala.)  410. 

23.  Sinks  vs.  Reese,  19  Ohio  St.  306. 

24.  Convery  vs.  Conger,  63  N.  J.  658. 

25.  41  Ark.  111. 

26.  Norris  vs.  Handley,  Smith  El.  Cas.  73. 

Section    58.     Waiver    of   Right   to    Contest   the 

Legality  of  an  Election  by  Participating 

Therein 

That  a  voter,  not  himself  a  candidate  for 
office,  cannot  be  held  to  have  waived  the  right 
to  contest  the  legality  of  an  election  through 
his  taking  part  in  the  election,  is  held  in  all 
the  decisions  which  refer  to  this  question.^ 


ELECTTOX  CONTESTS  217 

In  state  ex  rel.  Birchmore  vs.  State  Board 
of  Canvassers :-  the  court  said,  on  this  point : 

'' Therefore  this  election  must  be  held  in- 
valid unless,  as  relator  contends  the  respond- 
ents have  waived  their  right  to  contest  the 
election  by  taking  part  in  it  without  objection 
to  the  arrangements. 

"By  waiver  is  meant  the  intentional  re- 
linquishment of  a  known  right,  or  such  con- 
duct as  warrants  an  inference  of  the  relin- 
quishment of  such  a  right. "... 

"From  the  nature  of  the  doctrine  it  may 
and  seems  generally  to  be  applied  to  all  rights 
to  which  the  party  is  legally  entitled.  A 
limitation,  however,  is  usually  recognized, 
and  where  such  waiver  would  be  against  pub- 
lic policy  it  is  not  allowed  to  be  operative. 
Would  such  a  waiver  as  is  claimed  here  by 
the  relator  be  against  public  policy?  The 
provision  in  the  Constitution  requiring  popu- 
lar elections  to  be  by  ballot  had  in  view  of 
the  purity  of  elections  and  the  prevention  of 
intimidation  of  voters  at  the  polls.  From 
earliest  times  such  results  have  been  recog- 
Tiized  as  highly  beneficial  to  municipalities 
and  commonwealths.  While  it  might  ajopear 
that  primarily  the  object  was  to  secure  bene- 
fits to  electors,  yet  we  think  this  purpose  can 
only  be  regarded  as  a  means  to  an  end.     With 


218  ELECTION  LAWS 

the  right  of  the  individual  elector  secure, 
necessarily  it  must  follow  that  the  State's 
welfare  in  this  respect  would  be  safeguarded. 
To  attempt  to  enumerate  the  advantages  of 
a  well-regulated  franchise  would  unneces- 
sarily prolong  this  opinion,  yet  many  of  them 
must  be  evident  to  the  most  casual  observer. 
Therefore,  to  hold  that  the  respondents  in 
this  case  are  estopped  from  contesting  the 
election  because  they  cast  their  ballots  in  the 
election  without  protest  at  the  time,  we  think 
would  be  an  invasion  of  the  integrity  of  the 
franchise  system  of  the  State. ' ' 

It  has  also  been  held,  that  the  members  of 
a  county  canvassing  board  of  election  returns, 
who  had  canvassed  the  vote  on  a  county  seat 
question,  had  not  waived,  thereby,  their  right 
to  deny  their  own  right  to  act  in  the  matter.^ 

Candidates,  however,  may  be  estopped 
from  contesting  the  legality  of  an  election  in 
which  they  participated  and  were  defeated. 
Thus,  it  has  been  held  that  a  person  who  was 
a  candidate  for  a  nomination  at  his  party 
caucus  could  not  afterwards  object  to  the 
regularity  of  such  caucus  because  votes  of 
persons  not  members  of  the  party  were  re- 
ceived thereat,  where  he  was  cognizant  of 
such  fact  at  the  time  of  the  caucus,  but  made 
no  objection.^ 


ELECTION  CONTESTS  219 

But,  in  Smith  vs.  Holt,^  it  was  held  that  a 
candidate  who  was  dnly  elected  to  office,  at  a 
legal  election,  was  not  estopped  from  accept- 
ing and  holding  such  office,  for  the  full  term, 
on  account  of  the  fact  that  he  had  taken  part 
in  an  election  for  this  office  improperly  held 
the  previous  year. 

Notes 

1.  Elliott  vs.  Burke,  113  Ky.  479,  68  S.  W. 
445;  State  vs.  Barton,  58  Kan.  '^OQ,  51  Pac. 
Kep.  218. 

2.  78  S.  Car.  461. 

3.  State  vs.  Whitney,  12  Wash.  420,  41 
Pac.  Ptep..  189. 

4.  Re  Winton  Nominations,  2  Lock  Leg. 
N.  (Pa.)  13. 

5.  24  Kan.  773. 


CHAPTER  XI 

CRIMES  RELATING  TO   ELECTIONS 
Section  59.     Fraud  in  Registration 

Wherever  the  registration  of  voters  is 
required,  I'randiiient  registration  is  always  a 
crime  on  the  part  of  the  person  wrongfully 
registering.  Where  a  person  knowingly  reg- 
isters at  two  election  places,  a  criminal  intent 
is  not  a  necessary  element  of  the  crime. ^  A 
person  is  not  put  twice  in  jeopardy  for  the 
same  otfense  by  being  tried  for  fraudulent 
registration,  after  having  been  acquitted  of 
this  offense,  being  tried  for  illegal  voting  at 
the  election  for  which  the  registration  was 
made.- 

In  some  States  there  are  statutory  provis- 
ions for  tlie  punishment  of  all  persons  who 
cause,  allow,  or  induce  another  to  register 
fraudulently." 

The  Revised  Statute  of  the  United  States'* 
provides  for  the  punishment  of  any  person 
who  ''does  any  unlawful  act  to  secure  regis- 
tration for  himself  or  for  any  other  person. ' ' 

A  registration  officer  wi\\  always  be  crimin- 
ally liable  for  knowingly  permitting  fraudu- 

220 


CEIMES  221 

lent  names  to  be  placed,  or  to  remain,  on  the 
registration  lists  f  but,  except  in  Kansas  and 
Maryland,  it  is  held  that  registration  officials 
are  not  criminally  liable  where  they  were  de- 
ceived as  to  the  qualifications  of  the  person 
registered. 

The  crimes  relative  to  registration  are 
enumerated  in  the  Illinois  statutes  as  follows : 

"If  at  any  general  registration  of  voters, 
or  any  meeting  of  the  judges  of  election,  held 
for  such  purpose,  or  for  revision  thereof,  as 
provided  in  this  act,  any  person  shall  falsely 
personate  an  elector  or  other  person,  and 
register,  or  attempt  or  offer  to  register,  in 
the  name  of  such  elector  or  other  person ; 

"Or  if  any  person  shall  knowingly  or 
fraudulently  register  or  offer,  or  attempt,  or 
make  application  to  register,  in,  or  under  the 
name  of,  any  other  person,  or  in,  or  under 
any  false,  assumed  or  fictitious  name,  or  in, 
or  under  any  name  not  his  own ; 

"Or  shall  knowingly  or  fraudulently  reg- 
ister in  two  election  precincts ; 

"Or,  having  registered  in  one  precinct, 
shall  fraudulently  attempt  or  offer  to  regis- 
ter in  another; 

'  *  Or  shall  fraudulently  register  or  attempt, 
or  offer  to  register  in  any  election  precinct, 
not  having  a  lawful  right  to  register  therein ; 


222  ELECTION  LAWS 

* '  Or  shall  knowingly  or  wilfully  do  any  un- 
lawful act  to  secure  registration  for  himself 
or  any  other  person ; 

"Or  shall  knowingly,  wilfully,  or  fraudu- 
lently, by  false  personation  or  otherwise,  or 
by  any  unlawful  means  cause  or  procure,  or 
attempt  to  cause  or  procure,  the  name  of  any 
qualified  voter,  in  any  election  precinct,  to 
be  erased  or  stricken  from  any  registry  of 
the  voters  of  such  precinct,  made  in  pur- 
suance of  this  act  or  otherwise,  as  in  this  act 
provided ; 

"Or  by  force,  threat,  menace,  intimidation, 
bribery,  reward,  or  offer,  or  promise  thereof, 
or  other  unlawful  means  prevent,  hinder  or 
delay  any  person  having  a  lawful  right  to 
register  or  be  registered,  from  duly  exercis- 
ing such  right ; 

"Or  shall  knowingly,  wilfully,  or  fraudu- 
lently compel  or  induce,  or  attempt,  or  offer 
to  compel  or  induce,  by  such  means,  or  any 
unlawful  means,  any  judge  of  election  or 
other  officer  of  registration  in  any  election 
precinct  to  register  or  admit  to  registration 
any  person  not  lawfully  entitled  to  registra- 
tion in  such  precinct ; 

"Or  to  register  any  false,  assumed  or  fic- 
titious name,  or  any  name  of  any  person 
except  as  provided  in  this  act ;  . 


CKIMES  223 

* '  Or  shall  knowingly,  or  wilfully  or  fraudu- 
lently interfere  with,  hinder  or  delay  any 
judge  of  election,  or  other  officer  of  registra- 
tion, in  the  discharge  of  his  duties,  or  counsel, 
advise  or  induce,  or  attempt  to  induce,  any 
such  judge  or  other  officer  to  refuse  or  neg- 
lect to  comply  with  or  to  perform  his  duties, 
or  to  violate  any  law  proscribed  for  regulat- 
ing the  same ; 

"Or  shall  aid,  counsel,  procure  or  advise 
any  voter,  person,  judge  of  election,  or  other 
officer  of  registration,  to  do  any  act  by  law 
forbidden,  or  in  this  act  constituted  an 
offense,  or  to  omit  to  do  any  act  by  law 
directed  to  be  done ; 

''Every  such  person,  upon  conviction 
thereof,  shall  be  adjudged  guilty  of  a  misde- 
meanor; and  shall  be  punished  by  imprison- 
ment in  the  county  jail  for  not  less  than  three 
months  nor  more  than  one  year." 

The  laws  of  the  other  States  on  this  sub- 
ject, are  very  similar  to  the  Illinois  statute. 

Notes 

1.  State  vs.  Caldwell,  2  Hardesty   (Del.) 
164. 

2.  In  re  Donahue,  4  Ohio,  N.  P.  246,   6 
Ohio  Dee.  389. 

3.  People    vs.     Sternberg,     111     Cal.     3; 


224  ELECTION  LAWS 

United   States   vs.   O'Connor,   31   Fed.   Kep. 
449. 

4.  Section  5512. 

5.  United    States    vs.    Molloy,    31    Fed. 
Eep.  19. 

Section  60.  Illegal  Voting- 
Illegal  voting  is  always  a  crime  in  every 
jurisdiction.  This  crime  may  take  various 
forms,  such  as  voting  by  a  person  not  quali- 
fied/ falsely  impersonating  a  voter,-  or  vot- 
ing more  than  once."^ 

The  various  acts  which  will  constitute  a 
crime  of  this  character  in  Illinois  (whose 
laws  will  serve  as  a  fair  example  of  the  laws 
of  the  other  States  on  this  subject)  are  as  fol- 
lows: 

"If,  at  any  election  hereafter  held  in  any 
such  city,  village,  or  incorporated  town,  any 
person  shall  falsely  personate  any  elector  or 
other  person,  and  vote,  or  attempt  or  offer 
to  vote  in,  or  under  the  name  of  such  elector 
or  other  person ; 

"Or  shall  vote,  or  attempt  to  vote,  in  or 
upon  the  name  of  any  other  person,  whether 
living  or  dead,  or  in  or  upon  any  false,  as- 
sumed or  fictitious  name,  or  in  or  upon  any 
name  not  his  own; 

"Or  shall  knowingly,  wilfully  or  fi-audu- 


CKIMES  225 

lently  vote  more  than  once  for  any  candidate 
for  the  same  office,  except  as  authorized  by 
law ; 

* '  Or  shall  vote,  or  attempt  or  offer  to  vote, 
in  any  election  precinct  without  having  a 
lawful  right  to  vote  therein ; 

"Or  vote  more  than  once,  or  vote  in  more 
than  one  election  precinct; 

"Or  having  once  voted,  shall  vote  or  at- 
tempt or  offer  to  vote  again ; 

"Or  shall  knowingly,  wilfully  or  fraudu- 
lently do  any  unlawful  act  to  secure  a  right 
or  an  opportunity  to  vote  for  himself  or  for 
any  other  person ; 

"Or  shall  by  force,  threat,  menace,  intimi- 
dation, bribery,  or  reward,  or  offer  or  prom- 
ise thereof,  or  otherwise  unlawfully,  either 
directly  or  indirectly,  influence  or  attempt  to 
influence  any  elector  or  any  person  in  giving 
his  vote ; 

"Or  prevent  or  hinder,  or  attempt  to  pre- 
vent, or  hinder  any  qualified  voter  from 
freely  exercising  the  right  of  suffrage ; 

"Or  by  any  such  means  induce  or  attempt 
to  induce  any  such  voter,  or  any  person,  to 
exercise  any  such  right ; 

' '  Or  shall,  by  any  such  means  or  otherwise, 
compel  or  induce,  or  attempt  to  compel  or 
induce,  any  judge  of  election  or  other 'officer 


226  ELECTION  LAWS 

of  election,  in  any  election  precinct,  to  receive 
the  vote  of  any  person  not  legally  qualified 
or  entitled  to  vote  at  the  said  election  in 
such  precinct ; 

"Or  shall  knowingly,  wilfully  or  fraudu- 
lently interfere  with,  delay  or  hinder,  in  any 
manner,  any  judge  of  election,  poll  clerk  or 
otlier  officer  of  election  in  the  discharge  of 
his  duties ; 

''Or  by  any  such  means,  or  other  unlawful 
means,  knowingly,  wilfully,  or  fraudulently 
counsel,  advise,  induce  or  attempt  to  induce, 
any  judge  of  election,  poll  clerk  or  other  offi- 
cer of  election  whose  duty  it  is  to  ascertain, 
proclaim,  announce  or  declare  the  result  of 
any  such  election,  to  give  or  to  make  any 
false  certificate,  document,  report,  return  or 
other  false  evidence  in  relation  thereto  ; 

*'0r  to  refuse  or  neglect  to  comply  with 
his  duty,  or  to  violate  any  law  regulating 
the  same,  or  to  receive  the  vote  of  any  person 
in  any  election  district  not  entitled  to  vote 
therein ; 

''Or  to  refuse  to  receive  the  vote  of  any 
person  entitled  to  vote  therein ; 

* '  Or  to  omit  to  do  any  act  by  law  directed 
to  be  done; 

"Every  such  person,  upon  conviction 
thereof,  shall  be  adjudged  guilty  of  a  misde- 


CRIMES  227 

meanor,  and  shall  be  punished  by  imprison- 
ment in  the  county  jail  for  not  less  than  three 
months  nor  more  than  one  year. "  ^ 

Ignorance  of  law  is  no  defense  to  a  person 
who  votes  illegally  f  but  a  mistake  as  to  facts, 
such  as  to  the  voter's  own  age,  may  be  a  good 
defense.^ 

In  the  absence  of  fraud  or  collusion  the 
decision  of  the  election  officials  that  a  certain 
person  has  the  right  to  vote,  will  relieve  him 
of  criminal  liability/ 

Notes 

1.  State  vs.  Ninnick,  15  Iowa,  124. 

2.  State  vs.  Perkins,  42  Vt.  399. 

3.  State  vs.  McClarnon.  15  R.  I.  462 :  Fleet 
vs.  State,  74  Md.  552. 

4.  Illinois  Statutes,  Act  of  July  8,  1899. 

5.  People  vs.  Barber,  48  Hmi.  (N.  Y.)  198. 

6.  Gordon  vs.  State,  52  Ala.  308. 

7.  State  vs.  Pearson,  97  N.  C.  434;  but 
contra  Morris  vs.  State,  7  Blackf.  (Ind.)  606. 

*  Section  61.    Bribery 

The  scope  of  the  crime  of  bribery  in  elec- 
tions, is  very  broad.  The  crime  is  committed 
wherever  money,  or  any  other  valuable  con- 
sideration is  given  or  offered,  to  induce  a 
voter  to  vote  for  a  certain  party  or  candidate, 
or  to  refrain  from  voting  at  all;  or  when  a 


228  ELECTION  LAWS 

voter  receives,  or  asks  for,  money,  or  other 
valuable  consideration  as  a  consideration  for 
voting  in  a  certain  way  or  for  not  voting 
at  all. 

' '  It  has  been  held  indictable  at  common  law 
to  be  concerned  either  as  actor  or  receiver 
in  bribery  or  attempt  at  bribery  by  giving 
rewards  or  making  promises  in  order  to  pro- 
cure votes  in  elections;^  by  giving  refresh- 
ments to  voters  before  they  vote  to  induce 
them  to  vote  for  a  particular  candidate ;-  by 
promising  money  to  a  member  of  a  corpora- 
tion to  induce  him  to  vote  for  mayor;"  by  one 
elector  agreeing  to  vote  for  the  favorite  can- 
didate of  another  elector  for  clerk  in  con- 
sideration that  the  latter  shall  vote  for  the 
favorable  candidate  of  the  former  for  com- 
missioner;^ by  giving  money  to  a  voter  and 
taking  his  note,  at  the  same  time  giving  a 
counter-note  to  deliver  up  the  first  note,  when 
the  elector  has  voted  as  required  f  by  betting 
with  a  voter  that  he  will  not  vote  for  a  par- 
ticular person  for  the  purpose  of  inducing 
him  to  vote  for  such  person  f  and  by  several 
persons  mutually  agreeing  to  procure  for 
another  an  appointment  to  a  public  office  for 
a  sum  of  money  to  be  divided  among  them,'^ 
and  by  giving  a  voter  money  to  go  out  of 
town  and  forbear  voting.'*    The  statute  pro- 


CEIMES  229 

vides  for  the  pnnisliment  of  all  these  cases  as 
common-law  offenses.  If  a  voter  received 
from  one  person  a  card  or  token  in  one  room 
which  he  presents  to  another  person  in  an- 
other room,  and  thereupon  received  tlie 
money,  it  is  evidence  of  the  payment  of 
money  by  the  former. "  » ^^ 

In  general,  the  same  acts  will  constitute 
bribery  at  a  primary  election  as  at  a  regular 
election;  but  the  Illinois  Primary  Election 
Act  contains  the  provision  that  the  person 
giving  the  bribe  shall  not  be  guilty  of  any 
crime.  The  text  of  this  section  of  the  statute 
is  as  follows: 

"Any  person  who  shall  solicit,  request,  de- 
mand or  receive,  directly  or  indirectly,  any 
money,  intoxicating  liquor  or  other  thing  of 
value,  or  the  promise  thereof,  either  to  in- 
fluence his  vote,  or  to  used,  or  under  the  pre- 
tense of  being  used  to  procure  the  vote  of 
any  other  person  or  persons,  or  to  be  used 
at  any  poll  or  other  place  prior  to,  or 
on  the  day  of  a  primary  for  or  against 
any  candidate  for  office,  or  for  or  against 
any  measure  or  question  to  be  voted  upon 
at  such  primary,  shall  be  deemed  guilty 
of  the  infamous  crime  of  bribery  in  primaries 
and  upon  conviction  thereof  in  any  court  of 
record,  shall  be  sentenced  to  disfranchise- 


230  ELECTION  LAWS 

ment  by  the  judge  of  such  court  for  a  term 
of  not  less  than  five  and  not  more  than  fif- 
teen years,  and  to  the  county  jail  not  less  than 
three  months  and  not  more  than  one  year, 
and  to  pay  the  cost  of  prosecution  and  stand 
committed  to  the  county  jail  until  such  costa 
are  fully  paid.  That  for  a  conviction  of  a 
second  offense  under  this  section,  the  first 
being  alleged  and  proven,  such  offender  shall 
be  by  sentence  of  the  court  forever  there- 
after disfranchised  and  deprived  of  the  right 
to  vote  at  a  primary  in  this  State,  and  be 
imprisoned  in  the  county  jail  not  less  than 
one  year,  and  be  committed  to  jail  in  default 
of  the  payment  of  costs  of  prosecution  until 
such  costs  are  fully  paid.  Prosecutions  may 
be  had  under  this  section  by  indictment  in 
the  Circuit  Court,  or  by  information  in  the 
county  courts,  and  the  effect  of  a  sentence 
of  disfranchisement  in  either  of  said  courts, 
both  having  jurisdiction  of  offenses  here- 
under, shall  be  to  deprive  such  persons 
sentenced  to  (of)  the  right  to  vote  at  any 
primary  within  this  State  for  a  period  of 
time  fixed  by  the  court  where  such  person 
shall  be  convicted  under  this  section.  Any 
candidate  or  other  person  paying,  furnishing 
or  promising  to  pay  or  furnish  or  bribing 
such  person  with  money,  intoxicating  liquor, 


CEIMES  231 

or  any  other  thing  of  value,  or  the  promise 
thereof,  shall  not  be  liable  to  punishment 
therefor,  but  shall  be  a  competent  witness 
and  compelled  to  testify  in  prosecution  under 
this  section.  Solicitations  of  any  person  of 
a  loan  of  money,  or  the  purchase  of  anything 
of  value,  or  any  other  subterfuge,  shall  be 
deemed  a  violation  thereof." 

Notes 

1.  Rex.  vs.  Pitt,  3  Burr,  1335;  Vaughan's 
Case,  4  Burr,  2491 ;  U.  S.  vs.  Norrel,  "Whart, 
St.  Tr.,  189;  Com.  vs.  Shaver,  3  Serg.  &  W., 
338;  Rex  vs.  Cuplaiid,  11  Md.,  387;  Com.  vs. 
Shaver,  Watts  &  S.,  338. 

2.  Hughes  vs.  ]\[arshall,  2  Tyrw.,  134;  5 
Car.  &  P.,  151. 

3.  Rex.  vs  Plympton,  2  Cainpb.,  229 ;  2 
Ld.  Raym.,  1377 ;  Walsh  vs.  People,  65  lUs.,  58. 

4.  Com.  vs.  Callaghau,  2  Va.  Cas.,  460. 

5.  Sulston  vs.  Norton,  3  Burr,  1235. 

6.  Roscoe  Ev.,  327. 

7.  Rex.  vs.  Pohman,  2  Camp.,  229. 

8.  R.  S.,  395,  §292. 

9.  Webb  vs.  Smith,  4  Bing.,  373. 
10.     JMoore's  Criminal  Law,  §656. 

Section  62.    Offenses  by  Election  Officers 

"Rlection   officials   are   not   generally   held 
criminally  liable  for  any  acts  caused  by  errors 


232  ELECTION  LAWS 

of  judgment  without  wilful  disregard  of 
duty^  or  fraudulent  intent.- 

Sucli  officials,  however,  are  held  strictly  to 
account  criminally  for  any  fraud  or  inten- 
tional misconduct  on  their  part. 

Election  officials  are  criminally  liable  for 
altering  ballots,^  making  false  returns  of  the 
votes  cast,*  obstructing  other  election  offi- 
cers,^ wilfully  receiving  votes  from  persons 
not  entitled  to  vote,'''  or  wilfully  refusing  to 
allow  qualified  voters  to  vote/ 

Notes 

1.  United  States  vs.  Dwyer,  56  Fed.  Kep. 
464.  Am.  and  Eng.  Encyc.  of  Law.  Vol.  X, 
p.  851. 

2.  People  vs  Burns,  75  Cal.  G27. 

3.  Commonwealth  vs.  JMcGurtv,  145  ]\Iass. 
257. 

4.  People  vs.  Sullivan,  7  N.  Y.  Crim.  Kep. 
420 ;  Commonwealth  vs.  Mayor,  Thatch,  Crim. 
Cas.  298. 

5.  In  re  Depriest,  43  Fed.  Rep.  911. 

6.  State  vs.  McDonald,  4  Harr,  (Del.)  555; 
State  vs.  Krueger,  134  Mo.  262. 

7.  State  vs.  Daniels,  44  N.  H.  383. 

Section  63.    Minor  Offenses  Relating-  to  Elections 

Among  the  other  crimes  relating  to  elec- 
tions, which  are  provided  against  by  the  stat- 


CRIMES    ,  233 

utes  in  more  or  less  of  the  various  States, 
are:  Betting  on  elections/  intimidating 
voters,  carrying  weapons  in  the  vicinity  of 
any  polling  place,-  and  selling  or  giving  away 
liquor  during  the  time  the  polls  are  open,^  or 
during  the  whole  of  election  day.^ 

Notes 

1.  Wagner  vs.  State,  63  Ind.  250. 

2.  Cooper  vs.  State,  26  Tex.  App.  575. 

3.  Wolf  vs.  State,  59  Ark.  297. 

4.  Commonwealth  vs.  Murphy,  95  Ky.  38. 

Section  64.    At  What  Election  Offense  May  Be 
Committed 

In  order  to  convict  a  person  for  any  crime 
relating  to  elections,  the  election  in  connec- 
tion with  which  the  alleged  crime  was  com- 
mitted must  have  been  a  legal  election.^  No 
act  committed  with  relation  to  an  election  not 
authorized  by  law,  not  properly  called,  or 
otherwise  invalid,  can  constitute  a  crime.- 

Notes 

1.  Reed  vs.  Lamb,  6  H.  and  N.  75. 

2.  United    States   vs.    Badnielli,    37    Fed. 
Rep.  138. 

Section  65.    Federal  Statutes  as  to  Crimes  Relat- 
ing to  Elections 

The  provisions  of  the  Federal  statutes  as 


284  ELECTION  LAWS 

to  crimes  relating  to  elections  are  as  follows: 
Sec.  5507.  (Intimidating  voters  by  bribery 
or  threats.)  Every  person  who  prevents, 
hinders,  controls,  or  intimidates  another  from 
exercising,  or  in  exercising  the  right  of  suf- 
frage to  whom  that  right  is  guaranteed  by 
the  fifteenth  amendment  to  the  Constitution 
of  the  United  States,  by  means  of  bribery  or 
threats  of  depriving  such  person  of  employ- 
ment or  occupation,  or  of  ejecting  such  per- 
son from  a  rented  house,  lands,  or  other 
property,  or  by  threats  of  refusing  to  renew 
leases  or  contracts  for  labor,  or  by  threats 
of  violence  to  himself  or  family,  shall  be 
punished  as  provided  in  the  preceding 
section.^ 

Sec.  5509.  (Other  crimes  committed  while 
violating  the  preceding  sections.)  If  in  the 
act  of  violating  any  provision  in  either  of 
the  two  preceding  sections  any  other  felony 
or  misdemeanor  be  committed,  the  offender 
shall  be  punished  for  the  same  with  such 
punishment  as  is  attached  to  such  felony  or 
misdemeanor  by  the  laws  of  the  State  in 
which  the  offense  is  committed. 

Sec.  5528.  (Unlawful  presence  of  troops 
at  elections.)  Every  officer  of  the  Army  or 
Navy,  or  other  person  in  the  civil,  military, 
or  naval  service  of  the  United  States,  who 


CRIMES  235 

orders,  brings,  keeps,  or  has  under  bis  an- 
tbority  or  control,  any  troops  or  armed  men 
at  any  place  wliere  a  general  or  special  elec- 
tion is  held  in  any  State,  unless  such  force 
be  necessary  to  repel  armed  enemies  of  the 
United  States  or  to  keep  the  peace  at  the 
polls,  shall  be  fined  not  more  than  five  thou- 
sand dollars  and  sutf  er  imprisonment  at  hard 
labor  not  less  than  three  months  nor  more 
than  five  years. 

Sec.  5529.  (Intimidation  of  voters  by  offi- 
cers, etc.,  of  Army  or  Navy.)  Every  officer 
or  other  person  in  the  military  or  naval  serv- 
ice who,  by  force,  threat,  intimidation,  order, 
advice,  or  otherwise,  prevents,  or  attempts 
to  prevent  any  qualified  voter  of  any  State 
from  freely  exercising  the  right  of  suffrage 
at  any  general  or  special  election  in  such 
State,  shall  be  fined  not  more  than  five  thou- 
sand dollars,  and  imprisonment  at  hard  labor 
not  more  than  five  years. 

Sec.  5530.  (Officers  of  Army  or  Navy  pre- 
scribing qualifications  of  voters.)  Every 
officer  of  the  Army  or  Navy  who  prescribes 
or  fixes  or  attempts  to  prescribe  or  fix, 
whether  by  proclamation,  order,  or  other- 
wise, the  qualifications  of  voters  at  any  elec- 
tion in  any  State,  shall  be  punished  as  pro- 
vided in  the  preceding  section. 


236  ELECTION  LAWS 

Sec.  5531.  (Officers,  etc.,  of  Army  and 
Navy  interfering  with  officer  of  election,  etc.) 
Every  officer  or  other  person  in  the  military 
or  naval  service  who  by  force,  threat,  intimi- 
dation, order,  or  otherwise,  compels,  or  at- 
tempts to  compel,  any  officer  holding  an  elec- 
tion in  any  State  to  receive  a  vote  from  a 
person  not  legally  qualified  to  vote,  or  who 
imposes,  or  attempts  to  impose  any  regula- 
tions for  conducting  any  general  or  special 
election  in  a  State  different  from  those  pre- 
scribed by  law,  or  who  interferes  in  any  man- 
ner with  any  officer  of  an  election  in  the  dis- 
charge of  his  duty,  shall  be  punished  as 
provided  in  section  fifty-five  hundred  and 
twenty-nine. 

Sec.  5532.  (Disqualification  for  holding 
office.)  Every  person  convicted  of  any  of 
the  offenses  specified  in  the  five  preceding 
sections  shall,  in  addition  to  the  punishments 
therein  severally  prescribed,  be  disqualified 
from  holding  any  office  of  honor,  profit,  or 
trust  under  the  United  States;  but  nothing 
in  those  sections  shall  be  construed  to  pre- 
vent any  officer,  soldier,  sailor,  or  marine 
from  exercising  the  right  of  suffrage  in  any 
election  district  to  which  he  may  belong,  if 
otherwise  qualified  according  to  the  laws  of 
the  State  in  which  he  offers  to  vote. 


CRIMES  237 

Notes 

(1)     "The    preceding    section"    above   re- 
ferred to,  is  repealed, 
notes,  infra,  p.  870. 

This  section  is  in  excess  of  the  poAver  of 
Congress  and  is  void.  The  essential  element 
of  discrimination  on  account  of  race,  etc.,  is 
wanting,  and  the  section  is  therefore  unau- 
thorized by  the  Fifteenth  Amendment  to  the 
Constitution.  U.  S.  v.  Amsden,  (1881)  6  Fed. 
Rep.  819;  Lackey  v.  U.  S.,  (C.  C.  A.  1901)  107 
Fed.  Rep.  114. 


CHAPTER  XII 
FEDERAL  ELECTIONS 

Section  66.    Election  of  Federal  Ofl&cers 

The  only  Federal  officers  elected  directly 
by  the  people  are  the  Representatives  in  Con- 
gress. The  President,  Vice-President,  and 
Senators  are  elected  by  the  people  indirectly, 
the  former  through  the  medium  of  presiden- 
tial electors,  the  latter  through  the  State  Leg- 
islatures. The  proposed  Sixteenth  Amend- 
ment to  the  Constitution,  if  adopted,  will  add 
the  United  States  Senators  to  the  list  of 
Federal  officers  elected  by  the  people. 

The  Presidential  electors  are  apportioned 
among  the  several  States,  each  State  having 
as  many  Presidential  electors  as  it  has  Sena- 
tors and  Representatives  in  Congress  com- 
bined. Each  State  has  the  authority  to  ap- 
point its  electors  "in  such  a  manner  as  the 
Legislature  thereof  may  direct,"  and  the 
electors  from  each  State  meet  and  vote  by 
themselves. 

The  United  States  Senate  is  distinctively 
the  representative  body  of  the  States,  each 

2bb 


FEDEEAL  ELECTION' IS  230 

State  having  two  members  who  arc  chosen 
by  the  State  Legislatures. 

In  the  lower  house  the  members  are  ap- 
portioned among  the  States  according  to 
their  respective  populations,  and  it  is  left  to 
the  States  to  arrange  the  congressional  dis- 
tricts. The  Constitution  provides  that  mem- 
bers of  this  house  must  be  elected  by  the 
people  in  each  State,  but  the  qualifications 
necessary  to  voting  for  representatives  is 
left  to  each  State  to  determine  by  the  con- 
stitutional provision  that  the  electors  in  each 
State  shall  have  the  qualifications  requisite 
for  the  electors  of  the  m.ost  numerous  branch 
of  the  State  Legislature. 

"The  times,  places  and  manner  of  holding 
elections  for  Senators  and  Representatives 
shall  be  prescribed  in  each  State  by  the  Leg- 
islature thereof;  but  the  Congress  may,  at 
any  time,  by  law  make  or  alter  such  regula- 
tions, except  as  to  the  places  of  choosing 
Senators." 

The  power  granted  by  this  section  of  the 
United  States  Constitution  has  been  very 
little  used  by  Congress,  except  during 
the  period  following  the  Civil  War.  Con- 
gress, however,  possesses  this  power  of  con- 
trol over  these  elections  in  the  fullest  extent, 
and  can  either  provide  for  complete  Federal 


240  ELECTION  LAWS 

control  of  such  election  or  pass  laws  and 
regulations  binding  on  the  election  officers 
appointed  by  the  State. 

The  leading  case  on  the  question  of  the 
right  of  Congress  to  pass  laws  regulating 
congressional  elections  is  that  of  Ex  parte 
Siebold.  In  this  case  Siebold  and  others, 
who  were  judges  of  election  in  the  city  of 
Baltimore,  appointed  to  such  positions  under 
the  laws  of  Maryland,  were  convicted  for  the 
violation  of  sections  5515  and  5522  of  the 
Revised  Statutes  of  the  United  States,  which 
statutes  established  certain  regulations  gov- 
erning elections  at  which  Congressmen  were 
elected  and  imposing  certain  duties  upon  all 
election  officers  serving  at  such  elections.  In 
the  decision  in  this  case  it  was  held  that  in 
exercising  its  constitutional  right  to  regu- 
late congressional  elections  it  is  not  neces- 
sary that  Congress  should  assume  entire  con- 
trol of  such  elections,  but  may  exercise  this 
power  of  regulation  by  acting  in  conjunction 
with  the  States,  and  that  in  such  cases  the 
Federal  statutes  relative  to  such  elections 
will  prevail  over  the  State  statutes. 

Under  this  power  to  regulate  elections 
Congress  may  make  any  regulation  neces- 
sary to  secure  to  all  electors  in  every  State 


FEDEEAL  ELECTIONS  241 

the  full  and  fair  opportunity  to  declare  their 
will. 

The  Federal  statutes  at  present  contain 
the  following  provisions  as  to  the  regulation 
of  elections : 

Sec.  2003.  (Interference  with  freedom  of 
election  by  officers  of  Army  or  Navy.)  No 
officer  of  the  Army  or  Navy  of  the  United 
States  shall  prescribe  or  fix,  or  attempt  to 
prescribe  or  fix,  by  proclamation,  order,  or 
otherwise,  the  qualifications  of  voters  in  any 
State,  or  in  any  manner  interfere  with  the 
freedom  of  any  election  in  any  State,  or  with 
the  exercise  of  the  free  right  of  suffrage  in 
any  State. 

Sec.  2004.  (Race,  color,  or  previous  con- 
dition not  to  affect  the  right  to  vote.)  All 
citizens  of  the  United  States  who  are  other- 
wise qualified  by  law  to  vote  at  any  election 
by  the  people  in  any  State,  Territory,  dis- 
trict, county,  city,  parish,  township,  school 
district,  municipality,  or  other  territorial 
subdivision,  shall  be  entitled  and  allowed  to 
vote  at  all  such  elections,  without  distinction 
of  race,  color,  or  previous  condition  of  servi- 
tude ;  any  constitution,  law,  custom,  usage,  or 
regulation  of  any  State  or  Territory,  or  by 
or  under  its  authority,  to  the  contrary  not- 
withstanding. 


242  ELECTIOX  LAWS 

Section  67.    Contested  Congressional  Elections 

As  lias  been  already  shown  the  Constitu- 
tion makes  each  house  the  judge  of  the  elec- 
tions, returns  and  qualifications  of  its  mem- 
bers.^ Either  house  has  the  right  to  decide 
all  questions  both  of  law  and  of  fact  neces- 
sary to  determine  the  right  of  any  individual 
who  may  claim  to  be  one  of  its  members. - 

The  second  clause  of  the  third  section  of 
the  First  Article  closes  with  an  ambiguous 
provision  which  has  since  been  the  occasion 
of  a  great  deal  of  controversy:  '^And  if 
vacancies  happen,  by  resignation,  or  other- 
wise, during  the  recess  of  the  Legislature  of 
any  State,  the  executive  thereof  may  make 
temporary  appointments  until  the  next  meet- 
ing of  the  Legislature,  which  shall  then  fill 
such  vacancy."  Under  this  clause  the  ques- 
tion has  arisen  several  times  whether,  wlien 
the  Legislature  is  in  session  when  the  va- 
cancy occurs,  and  then  adjourns  without 
electing  a  senator,  the  governor  may  fill  the 
vacancy. 

The  intention  of  the  Constitutional  Con- 
vention on  this  point  can  be  readily  seen  by 
examination  of  the  first  draft  of  the  Consti- 
tution as  reported  to  the  convention  by  the 
committee  on  detail  on  August  6th.     In  this 


TEDEEAL  ELECTIONS  243 

draft,  Article  V,  Section  4,  read  as  follows: 
''The  Senate  of  the  United  States  shall  be 
chosen  by  the  Legislatures  of  the  several 
States.  Each  Legislature  shall  choose  two 
members.  Vacancies  may  be  supplied  by  the 
executive  until  the  next  meeting  of  the  Leg- 
islature. Each  member  shall  have  one  vote."^ 
Here  is  an  unequivocal  grant  to  the  execu- 
tives of  the  several  States  of  the  right  to  fill 
vacancies  in  the  senate,  no  matter  when  oc- 
curring. This  grant  of  power  was  never 
thereafter  changed  by  the  vote  of  the  Con- 
vention, and  never  intentionally  changed 
at  all.  The  ambiguity  arose  from  the 
language  adopted  by  the  committee  on 
style  in  their  final  draft  of  the  Consti- 
tution. This  was  a  finishing  committee 
appointed  by  the  convention  to  correct 
the  style  and  form  of  the  Constitution  with- 
out any  power  to  alter  its  substance.  It  is 
thus  clear  from  the  study  of  the  history  of 
the  Constitutional  Convention  that  the  execu- 
tive authority  of  the  State  should  have  the 
power  to  fill  a  vacancy  in  the  Senate,  even 
when  the  same  arises  from  the  failure  of  the 
Legislature  to  elect;  the  Senate,  however, 
upon  every  occasion  when  the  question  has 
come  before  them,  has  refused  to  seat  the 
member  thus  appointed.^     It  must,  therefore, 


244  ELECTION  LAWS 

be  taken  as  the  settled  law  that  the  governor 
of  a  State  cannot  fill  a  vacancy  in  the  Senate 
which  existed  while  the  Legislature  was  in 
session. 

The  statutes  of  the  United  States^  provide 
that  the  Legislature  chosen  next  preceding 
the  expiration  of  the  term  of  office  of  any 
senator  shall  elect  a  senator  on  the  second 
Tuesday  after  its  first  meeting  and  organi- 
zation. In  case  of  a  vacancy  the  election 
shall  be  held  on  the  second  Tuesday  after  the 
Legislature  shall  be  organized  and  have  no- 
tice thereof.^  In  either  case  at  least  one  bal- 
lot a  day  must  be  taken  until  the  end  of  the 
session,  by  the  Legislature,  unless  the  sena- 
tor be  sooner  chosenJ  A  senator  can  never 
be  elected  by  a  minority  vote,  even  if  the 
person  receiving  the  majority  vote  is  in- 
eligible.^ Where  each  of  the  two  rival 
Legislatures,  one  more  nearly  approaching 
a  de  facto  Legislature  and  the  other  more 
nearly  a  de  jure  Legislature,  but  neither  of 
which  has  a  majority  of  legally  elected  mem- 
bers, elect  senators,  neither  of  such  senators 
can  claim  a  legal  election  and  both  will  be 

denied  a  seat.^  ^" 

Notes 
1.     United  States  Constitution,  Art.  I,  See. 
5,  Clause  1. 


FEDERAL  ELECTIONS  245 

2.  Baker  1  Bart.  El.  Cases,  92. 

3.  Madison's  Journal  of  the  Federal  Con- 
vention, under  date  of  August  6tli. 

4.  Johns.  Taft  El.  Cases,  1. 

5.  Rev.  Stat.  U.  S.  Sec.  14. 

6.  Rev.  Stat.  U.  S.  Sec.  17. 

7.  Rev.  Stat.  U.  S.  Sec.  15. 

8.  RaAvson  vs.  Abbott,  Taft  El.  Cases,  338. 

9.  The   Louisiana   Cases,    Taft   El.    Cases 
426. 

10.     Putney's  "United  States  Constitutional 
History  and  Law."    Section  125. 

Section  68.    Presidential  Elections 

The  manner  in  which  the  President  of  the 
United  States  should  be  chosen  was  one  of 
the  much  discussed  questions  before  the  Fed- 
eral Constitutional  Convention. 

Among  the  various  methods  proposed  were 
elections  by  the  people,  by  the  executives  of 
the  different  States,  the  executive  of  each 
State  having  one  vote;  by  the  executives  of 
the  different  States,  the  executive  of  each 
having  a  vote  proportionate  to  the  popula- 
tion of  the  State ;  by  Congress ;  by  the  Sen- 
ate; and  by  Presidential  electors.  This  last 
method,  which  was  finally  adopted,  was  sug- 
gested by  the  method  used  to  elect  State 
senators  in  Maryland.  The  provision  con- 
tained in  the  Constitution  as  finally  adopted 
is  as  follows: 


246  ELFX'TION  LAWS 

''The  executive  power  shall  l)c  vested  in  u 
Pi'osident  of  the  United  States  of  America. 
He  shall  hold  office  during  the  term  of  four 
years,  and,  together  with  the  Vice-President, 
chosen  for  the  same  term,  be  elected  as 
follows : 

"Each  State  shall  appoint,  in  such  man- 
ner as  the  Legislature  thereof  shall  direct, 
a  number  of  electors  equal  to  the  whole  num- 
ber of  senators  and  representatives  to  which 
the  State  may  be  entitled  in  the  Congress ; 
but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  as  elector. 

' '  The  electors  shall  meet  in  their  respective 
States  and  vote  by  ballot  for  two  persons,  of 
whom  one  at  least  shall  not  be  an  inhabitant 
of  the  same  State  with  themselves.  And 
they  shall  make  a  list  of  all  persons  voted 
for,  and  of  the  number  of  votes  for  each, 
which  list  they  shall  sign  and  certify  and 
transmit  sealed  to  the  seat  of  Government  of 
the  United  States,  directed  to  the  President 
of  the  Senate.  The  president  of  the  Senate 
shall,  in  the  presence  of  the  Senate  and  the 
House  of  Representatives,  open  all  the  cer- 
tificates, and  the  votes  shall  then  be  counted. 
The  person  having  the  greatest  number  of 
votes  shall  be  President,  if  such  number  be 


FEDERAL,  ELECTIONS  247 

the  majority  of  the  wliole  number  of  electors 
appointed,  and  if  there  be  j^nore  than  one 
who  have  such  majority,  and  have  an  equal 
number  of  votes,  then  the  House  of  Eepre- 
sentatives  shall  immediately  choose  by  bal- 
lot one  of  them  for  President ;  and  if  no  per- 
son have  a  majority,  then  from  the  five 
highest  on  the  list  the  said  House  shall  in 
like  manner  choose  the  President.  But,  in 
choosing  the  President  the  votes  sliall  be 
taken  by  States,  the  representatives  from 
each  State  having  one  vote;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  States,  and 
a  majority  of  all  the  States  shall  be  necessary 
to  a  choice.  In  every  case  after  the  choice 
of  President  the  person  having  the  greatest 
number  of  votes  of  the  directors  shall  be  the 
Vice-President.  But  if  there  should  remain 
two  or  more  who  have  equal  votes,  the  Sen- 
ate shall  choose  from  them  by  ballot  the  Vice- 
President. 

"The  Congress  may  determine  the  time  of 
cjioosing  the  electors  and  the  day  on  which 
they  shall  give  their  votes,  which  day  shall 
be  the  same  throughout  the  United  States. ' '  ^ 

No  other  clause  in  the  Constitution  has 
worked  in  a  manner  so  foreign  to  the  expec- 
tation of  the  framers  of  the  Constitution  as 


248  ELECTION  LAWS 

has  this  one.  The  intention  of  the  framers 
of  the  Constitution  was  to  have  the  President 
elected  only  indirectly  by  the  people;  the 
people  were  to  elect  the  Presidential  electors, 
men  of  character  and  standing  in  the  com- 
munity, who  were  then  on  their  own  judg- 
ment to  elect  the  President.  As  a  matter  of 
fact,  the  people  from  the  start  took  upon 
themselves  the  power  of  choosing  their  Presi- 
dent. By  the  third  election,  that  of  1796, 
regular  party  candidates  were  in  the  field 
and  the  Presidential  electors  were  reduced  to 
mere  figureheads.  Since  this  time  these  elec- 
tors have  merely  registered  the  dictates  of 
the  National  Convention  of  the  political  party 
by  which  they  were  nominated.  This  un- 
broken custom,  by  which  electors  are  obliged 
to  vote  for  the  candidates  of  their  party,  is 
the  nearest  approach  in  our  institutions  to 
anything  corresponding  to  the  so-called  con- 
ventions of  the  English  Constitution. 

One  serious  defect  in  the  method  of  elect- 
ing the  President  and  Vice-President  early 
made  itself  manifest.  As  each  elector  voted 
for  two  men  for  the  office  of  President  and 
as  each  party  had  two  candidates  (one  of 
whom  they  intended  for  Vice-President)  it 
was  soon  seen  that  the  natural  result  of  the 
electors  voting  their   straight   party  ticket 


FEDEEAL  ELECTIONS  249 

would  be  a  tie  vote  for  the  position  of  Presi- 
dent. To  avoid  such  a  result  in  1796,  a  num- 
ber of  the  Federalist  electors  (that  party 
having  secured  a  majority  of  the  Electoral 
College)  withheld  their  votes  from  Pinckney, 
one  of  the  candidates  of  this  party,  in  order 
to  make  John  Adams  President  and  Pinckney 
Vice-President.  A  miscalculation,  however, 
resulted  in  Pinckney  receiving  fewer  votes 
than  Thomas  Jefferson,  one  of  the  candidates 
of  the  Democratic  party.  The  result  was  the 
election  of  John  Adams,  a  Federalist,  as 
President,  and  of  Thomas  Jefferson,  a  Demo- 
crat, as  Vice-President. 

In  the  election  of  1800,  the  Democrats 
elected  seventy-three  presidential  electors 
and  the  Federalists  sixty-five.  To  prevent  a 
result  similar  to  that  in  1796,  all  of  the  Demo- 
cratic electors  voted  for  both  Thomas  Jeffer- 
son and  Aaron  Burr  for  President. 

This  resulted  in  the  long  contest  in  the 
House  of  Representatives  between  Jefferson 
and  Burr.  To  remedy  the  defect,  shown  by 
the  results  in  1796  and  1800,  the  Twelfth 
Amendment  was  submitted  to  the  States  in 
1803  and  adopted  in  1804.  By  this  amend- 
ment provision  was  made  for  separate  bal- 
loting for  President  and  Vice-President. 
The  Twelfth  Amendment  is  as  follows : 


250  ELECTION  LAWS 

"The  electors  shall  meet  in  their  respective 
States  and  vote  by  ballot  for  President  and 
Vice-President,  one  of  whom,  at  least,  shall 
not  be  an  inhabitant  of  the  same  State  with 
themselves ;  they  shall  name  in  their  ballots 
tlie  person  voted  for  President  and  in  dis- 
tinct ballots  the  person  voted  for  as  Vice- 
President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify 
and  transmit  sealed  to  the  seat  of  Govern- 
ment of  the  United  States,  directed  to  the 
President  of  the  Senate ;  the  President  of 
the  Senate  shall,  in  the  presence  of  the  Sen- 
ate and  House  of  Representatives,  open  all 
certificates,  and  the  votes  shall  then  be 
counted;  the  person  having  the  greatest 
number  of  votes  for  President  shall  be  Presi- 
dent, if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed;  and  if 
no  person  have  such  a  majority,  then  from 
the  persons  having  the  highest  numbers,  not 
exceeding  three,  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representa- 
tives shall  choose  immediately  by  ballot  the 
President.  But  in  choosing  the  President 
the  votes  shall  be  taken  by  States,  the  repre- 
sentation of  each  State  having  one  vote;  a 
quorum  for  this  ]nirpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the 


FEDEEAL  ELECTIONS  251 

States,  and  a  majority  of  all  the  States  shall 
be  necessary  to  a  choice.  And  if  the  House 
of  Representatives  shall  not  choose  a  Presi- 
dent whenever  the  right  of  choice  shall  de- 
volve upon  them  before  the  4th  day  of  March 
next  following,  then  the  Vice-President  shall 
act  as  President,  as  in  the  case  of  the  death 
or  other  constitutional  disability  of  the 
President. 

' '  The  person  having  the  greatest  number  of 
votes  as  Vice-President  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed,  and 
if  no  person  have  a  majority,  then  from  the 
two  highest  numbers  on  the  list  the  Senate 
shall  choose  the  Vice-President ;  a  quorum  for 
the  purpose  shall  consist  of  two-thirds  of  the 
whole  number  of  senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a 
choice. 

''But  no  person  constitutionally  ineligible 
to  the  office  of  President  shall  be  eligible  to 
that  of  Vice-President  of  the  United  States." 

Presidential  electors  have,  in  the  past,  been 
chosen  in  many  different  ways,  three  meth- 
ods in  particular  having  been  common  in  the 
early  days  of  the  Republic,  viz.,  by  State 
Legislatures ;  by  the  people  voting  by  dis- 
tricts ;  and  by  the  people  by  general  vote  of 


252  ELECTION  LAWS 

the  State.-  Since  1832  they  have  been  uni- 
formly chosen  in  the  last  named  manner 
except  that  in  South  Carolina  they  were 
chosen  by  the  Legislature  until  after  the  Civil 
War,  and  in  Michigan  they  were  chosen  by 
districts  in  the  election  of  1892.^  The  man- 
ner of  choosing  these  electors  is  entirely  in 
the  hands  of  the  different  States  and  is  not 
subject  to  the  revision  or  control  of  the  gen- 
eral Government.'*  Presidential  electors  are 
State  officials  and  not  Federal  officials.  Con- 
gress, however,  may  determine  the  time  of 
choosing  the  electors,  and  the  day  on  which 
they  shall  give  their  votes,  which  day  shall 
be  the  same  throughout  the  United  States.-"^ 
There  is  an  uncertainty  in  the  Constitution 
as  to  the  procedure  at  the  counting  of  the 
votes  for  President  and  as  to  the  method  to 
be  used  in  determining  the  legality  of  any 
undisputed  votes.  It  has  been  argued  by 
different  factions  at  different  times  that  the 
decision  rested  with  the  Vice-President,  with 
the  two  houses  of  Congress  voting  together, 
and  with  the  two  houses  of  Congress  voting 
separately.  The  latter  would  seem  to  be  the 
correct  view,  but  it  fails  to  provide  for  cases 
where  a  deadlock  might  arise  between  the 
two  houses  on  the  question  of  accepting  or 
rejecting  certain  votes.     This  question,  which 


FEDEEAL  ELECTIONS  253 

brought  the  country  almost  to  the  verge  of 
Civil  War  on  the  disputed  election  of  1876, 
has  never  been  passed  upon  by  the  United 
States  courts.  The  dispute  in  1877  was  set- 
tled by  the  creation  of  the  Electoral  Com- 
mission, a  temporary  and  unsatisfactory 
expedient  which  cannot  become  a  precedent. 

The  method  of  electing  the  President  in 
case  no  candidate  receives  the  votes  of  a 
majority  of  the  electors  is  a  very  anomalous 
one,  and  one  which  might  lead  to  very  unex- 
pected results  if  this  country  should  ever 
have  three  or  more  strong  political  parties, 
instead  of  two  such  parties. 

In  case  no  candidate  for  President  has  a 
majority  the  election  goes  to  the  House  of 
Representatives,  where  two  peculiar  condi- 
tions are  to  be  noted :  first,  the  election  is  not 
by  the  House  of  Representatives  elected  at 
the  same  time  as  the  Presidential  electors, 
but  by  the  House  of  Representatives  chosen 
two  years  previous;  the  election  would 
therefore  under  any  circumstances  be  deter- 
mined not  by  the  political  sentiments  of  the 
people  at  the  time  of  the  election,  but  by  the 
sentiment  which  existed  two  years  before. 
Second,  the  election  is  not  by  general  vote  of 
the  House,  but  by  States,  each  State  having 
one  vote  and  a  majority  of  all  the  States 


254  ELECTION    LAWS 

being  required  to  elect,  tiie  vote  of  each 
State  being  determined  by  the  vote  of  the 
majority  of  the  members  from  the  State.  In 
case  a  representation  from  any  State  in  the 
House  of  Representatives  was  equally  di- 
vided politically,  the  vote  of  the  Starte  would 
be  lost.  The  vote  of  the  majority  of  all  the 
States,  however,  would  be  necessary  to  elect 
a  President,  and  if  there  were  three  or  more 
candidates,  each  with  material  strength,  or 
the  vote  of  the  several  States  was  equally 
divided,  and  thus  lost,  an  election  of  a  Presi- 
dent by  the  House  would  become  very  im- 
probable. For  example,  in  the  year  of  this 
writing  (1912),  although  one  of  the  two  great 
political  parties  has  a  substantial  majority 
in  the  House  of  Representatives,  one  of  the 
two  leading  parties  have  a  majority  in  the 
representation  of  twenty-two  States,  the 
other  in  the  representation  of  twenty-three 
States,  and  the  vote  of  three  States  is  equally 
divided  between  them. 

The  election  of  the  Vice-President  where 
no  candidate  has  a  majority  goes  to  the  Sen- 
ate, who  must  choose  from  the  two  candidates 
receiving  the  highest  number  of  votes.  At 
first  sight  it  would  seem  certain  that  a  Vice- 
President  would  be  chosen,  except  in  the 
unlikely    contingency    of   the    Senate    being 


FEDEEAL  ELECTIONS  255 

equally  divided  between  the  two  candidates. 
In  case  the  Vice-President  was  thus  chosen, 
and  no  chose  of  President  was  made,  the 
person  chosen  as  Vice-President  would,  in 
virtue  of  his  election  to  this  office,  auto- 
matically become  President  on  the  fourth  of 
March.  There  is  one  provision  in  the  Con- 
stitution, however,  which  would  make  it  very 
easy  to  prevent  the  election  of  any  person  as 
Vice-President;  the  Constitution  requiring 
two-thirds  of  the  members  of  the  Senate  to 
make  a  quorum  when  the  Vice-President  is 
to  be  chosen.  Any  number  of  senators  con- 
stituting more  than  one-third  of  the  body 
could  prevent  the  election  by  absenting  them- 
selves from  the  Senate. 

In  case  no  person  was  chosen  either  as 
President  by  the  House  of  Representatives, 
or  as  Vice-President  by  the  Senate,  upon 
the  fourth  of  March,  the  office  of  President 
would  devolve  upon  the  Secretary  of  State 
in  the  Cabinet  of  the  retiring  President,  or 
if  he  was  ineligible,  upon  the  highest  member 
of  the  Cabinet  (according  to  the  Presidential 
Succession  Law)  eligible  for  the  office. 

Notes 

1.     United    States    Constitution,    Art.    II, 
Sec.  1. 


256  ELECTION  LAWS 

2.  McPherson  vs.  Blacker,  146  U.  S.  25. 

3.  The  States  which  chose  Presidential 
electors  otherwise  than  by  general  ticket, 
prior  to  1832,  and  the  elections  in  wliich  they 
were  thus  chosen,  were  as  follows  : 

Rhode  Island  by  the  legislature  from  1792 
to  1796;  i\Iassachusetts  by  districts  from  1789 
to  1796,  and  in  1812,  1820  and  1824,  and  by 
the  legislature  from  1800  to  1808,  and  in  1816. 

Connecticut  by  the  legislature  from  1789  to 
1820. 

New  Hampshire  by  the  legislature  in  1800. 

New  York  by  the  legislature  from  1792  to 
1824,  and  by  districts  in  1828. 

New  Jersey  by  the  legislature  from  1789  to 
1804  and  in  1812. 

Pennsylvania  by  the  legislature  in  1800  and 
by  districts  in  1816. 

Delaware  by  the  legislature  from  1789  to 
1828. 

Virginia  bj^  districts  from  1789  to  1796  and 
from  1812  to  1816. 

South  Carolina  by  the  legislature  through- 
out this  entire  period. 

North  Carolina  by  districts  from  1792  to 
1808  and  by  legislature  in  1812. 

Maryland  by  districts  from  1796  to  1832. 

Georgia  by  legislature  from  1789  to  1800 
and  from  1816  to  1834. 

Vermont  by  legislature  from  1792  to  1800 
and  in  1816  and  by  district  in  1804. 


FEDERAL  ELECTIONS  257 

Kentucky  by  legislature  from  1792  to  1796, 
and  by  districts  in  1804  to  1824. 

Tennessee  by  legislature  from  1796  to  1804, 
and  by  districts  from  1804  to  1828. 

Louisiana  by  the  legislature  in  1824. 

Illinois  by  districts  in  1824. 

Maine  by  districts  from  1824  to  1828. 

4.  Id.  United  States  Constitution,  Art.  II, 
Sec.  1,  Clause  4. 

5.  McPherson  vs.  Blacker,  146  U.  S.  25. 


TABLE  OF  CASES 


A. 

Abbott  vs.  Frost  (Smith  El.  Cas.) 205 

Adcock  vs.  Houek  (122  S.  W.  979) 195 

Adsit  vs.  Osmim    (84  Mich.  420) 84-167 

Allen  vs.  Glynn  (17  Colo.  338,  29  Pac.  Eep.  670) 209 

Anderson  vs.  Baker  (23  Md.  531) 27 

Arnold,  ex  parte   (128  Mo.  269) 139 

Apple  vs.  Badcroft   (158  111.  649,  41  N.  E.  Rep.  1116) 

109-216 

Ashby  vs.  White   (1  Bro.  P.  C.  45,  2  Ld.  Paym,  936) 

(decided  in   1703)    30 

Atkinson  vs.  Lorbeer   (111  Cal.  419,  44  Pac.  Eep.  162)    142 

Attorney  General  vs.  Boston  (123  Mass.  460.) 185 

Attorney  General  vs.  Campbell    (191  Mass.   497,   78   N. 

E.)    206-208 

Attorney  General  vs.  Glaser   (102  Mich.  396,  61  N.  W. 

648)    142 

Attorney  General  vs.  May    (99    Mich.    538) 103 

Attorney  General  vs.  Sullivan    (163  Mass.  446) 174 

B. 

Baker  vs.  Bart  (El.  Cas.  92) 197 

Baker  vs.  Scott  (4  Idaho  596,  43  Pac.  76) 208-107 

Barry,   In   re    (58   N.   E.   12,   164  N.   Y.   18,   8   N.   Y. 

Ann.  Cas.  148) 51 

Barnum  vs.  Gilman  (27  Minn.  446,  8  N.  W.  375) 174 

Baughnan  vs.  Nation  (76  Kan.  668,  92  Pac.  548) 175 

Beal  vs.  Eay  (8  Ind.  554) 195 

Beall  vs.  Albert   (159  111.  127) 216 

Beair  vs.  Eidgeley  (41  Mo.  63,  97  Ab.  Dec.  248) 27 

Ben  vs.   State    (71  Miss.  1) 61 

Berbrensmeyer    vs.    Krertz    (135    111.    591,    26    N.    E. 

704)    115-140 

Bergin  vs.  Macdonald  (Hodgin's  Elee.  Cas.  547) 205 

Bernier  vs.  Eussell    (89   111.   60) 33 

Biddle  vs.  Wing  (CI.  and  El.  Cas.  504) 85 

259 


260  TABLE  OF  CASES 

Bl.ackmer  vs.  Hildreth  (181  Mass.  29,  63  N.  E.  14)..  104-209 

Blankinship  vs.  Israel  (1^-  I"-  514,  24  N.  E.  615) 167 

Bovvers  vs.  Smitli  (111  Mo.  45,  20  S.  W.  102) 208 

Boyd  vs.  Mills   (53  Kau.  594,  608,  37  Pac.  16  and  25 

L.   E.   A,   486)     157-169 

Boyd  vs.  Nebraska   (143  U.  S.  135) 175 

Bragdon  vs.  Navarre  (102  Mieli.  259,  60  N.  W.  277)..   209 

Brazie  vs.  Fayette  County   (25  W.  Va,  23) 187 

Brewster  vs.  Sherman  (195  Mass.  222) 183-185 

Britton  vs.   Elec.   Commissioners    (129  Cal.  337) 75 

Brown  vs.  Cole   (54  Misc.  278,  104  N.  Y.  S.  109) 192 

Brueggeman  vs.  Young   (208  111.  181,  70  N.  E.  292)..   169 

Bucker  vs.  Verive  (63  Cal.  304) 187 

Eurrell,  In  re   (100  N.  Y.  S.  470) 206 

Byrne,   In   re    (128   App.   Div.   334,   122,   N.   Y.   Supp. 

699)   73 

Bvler  vs.  Asker   (47  III.  2) 33-60 


Caker  vs.  Foster   (12  Pickering  (Mass.)   485) 60 

Carnile  vs.  Jones  (31  Mont.  590,  101  Pac.  Rep.  1.53) .  .  115 

Chamberlain  vs.  Hedge  (12  S.  D.  135,  80  N.  W,  178)  .  .  159 

Chamberlain  vs.  Wood   (155  Dak.   216) 104 

Chicago  et  R.  Co.  vs.  Pickney   (74  111.  277) 84 

Childress  vs.  Pinson    (100   S.'  W.  Rep.   278) 182 

Chimasero  vs.  Potts  (2  Mont.  242) 186 

Clarke  vs.  Hampden  County   (126  Mass.   282) 151 

Clarke  vs.  Harrcock  County  (27  111.  305) 83 

Clarke  vs.  Rogers    (81   Ky.   43) 170 

Coglar  vs.  Beard  (65  Cal.  58) 216 

Cole  vs.  Tucker  (164  Mass.  486) 101 

Commonwealth  vs.  Callaghan   (2  Va.  Cases) 160 

Commonwealth  vs.  Emminger    (74  Pa.   St.   479) 150 

Commonwealth  vs.  Lexington,  etc.,  J.  R.  Co.,  (6  B.  Mon. 

(Ky.)    397) 174 

Commonwealth  vs.  Mayor  (5  Hatch.  Crim.  Cas.  298) .  .  232 

Commonwealth  vs.  McCarter   (98  Pa.  St.  607) 175 

Commonwealth  vs.  McCormich    (8   Pa.   Dist.  R.   117)..  169 

Commonwealth  vs.  McGurty    (145   Mass.    257) 232 

Commonwealth  vs.  Miller   (98  Ky.  446,  33  S.  W.  401)  143 

Commonwealth  vs.  Murphy    (95   Ky.  38) 233 

Commonwealth  vs.  Richmond    (5   Pa.   Dist.   647) 123 

Commonwealth  vs.  Shaner   (3  Serg.  N.  W.  338)  ...  .205-231 

Commonwealth  vs.  Tree    (4    Phila.    362) 186 

Contested   Election   of    Burke,    In    re    (22    Pitts.   Leg. 

J.    193) 215 


TABLE  OF  CASES  261 

Convery  vs.  Conger   (63  C.  J.  658) 216 

Cook  vs.  Fisher   (100  la.  27,  69  N.  W.  Eep.  264) 107 

Cooper  vs.   State    (26    Tex.   App.    575) 233 

Corbin  vs.  Butler   (Taft  El.  Cases  502) 197 

Cosgrifie  vs.  San  Francisco  Elec.  Com.    (91  Pac.   98)..  181 

Creech  vs.  Davis   (51   S.  W.  Eep.   428) 106 

Cross  vs.  Keathly  (Tenn.)   (105  S.  W.  Eep.  854) 108 

Oullen   vs.    Morris    (2    Stack    577) 33 

D. 

Daly  vs.  Petroff  (10  Phila.   (Pa.)  389) 142 

Dale   vs.    Irwin    (78    111.    179) 89-106 

Dapper  vs.  Smith  (138  Mich.  104,  101  N.  W.  Eep.  60)      75 

Darst  vs.  People   (62  111.  306) 193 

Davidson  vs.  Hanson   (87  Minn.  211) 64 

Davis  vs.  Dawson  (90  Ga.  817,  17  S.  E.  110) 195 

Debridge  vs.  Green   (29  Mich.  121) 186 

Deemar  vs.  Boyne   (103  111.  App.  464) 195-196 

Depriest,  In  re  (43  Fed.  Eep.  911) 232 

Detroit  vs.  Board  of  Inspectors    (102;   2,  1029) 139 

Detroit  vs.  Ensh   (82  Mich.  532) 103 

Devons  et  al.  vs.  Gallatin  County  Ct.  al.   (244  111.  40)    169 
Dickenson  vs.  Cheboygan  County  Canvassers  (148  Mich. 

513,  111  N.  W.  1075) 182 

Dickey  vs.  Eeed   (78  111.  261) 189 

Donahue,  In  re  (4  Ohio  N.  P.  246) 223 

Douglas  vs.  Hutchinson   (183  III.  323,  55  N.  E.  628)..   169 

Drewe  vs.  Coulton   (1   East  563) 33 

Duffy  vs.  Mason  (1  Ellsworth  El.  Cas.  362) 205 

E. 

Eaton  vs.  Brown  (96  Cal.  365) 103 

Edwards  vs.  Knight    (8  Ohio   375) 215 

Elbin   vs.   Wilson    (33   Md.   135) 33 

Elliott  vs.  Burke  (113  Ky.  479,  68  S.  W.  445) 219 

Ellis  vs.  Glaser  (102  Mich.  396,  61  N.  W.  Eep.  505)..  107 

Ellis  vs.  Karl   (7  Neb.  381) 84 

Elwell  vs.  Comstock  (9  Am.  &  Eng.  Anno.  Cases  270) .  .  139 

English  vs.  Peele  (48  Cong.  H.  Eep.  1547) 205 

Esquibel  vs.  Chaves  (12  N.  Mex.  482,  78  Pac.  Eep.  505)  107 

Evos  vs.  States  (131  Ind.  560,  31  N.  E.  Eep.  357) ....  148 

F. 

Field  vs.  Hall  (Tex.)    (40  S.  W.  789) 87 

Fisher  vs.  Dudley  (74  Md.  242) 123 


262  TABLE   OF  CASES 

Flanders  vs.  Roberts  (142  Wis.  394,  123  N.  W.  9.52)..  114 

Fleet   vs.   State    (74  Md.   552) 227 

Foley  vs.  Tvler   (161  111.  167) 197 

Fowler  vs.  State   (68  Tex.  303.  S.  W.  Eep.  255) 147 

Friend  vs.   Hammill    (34  Md.   298) 33 

Friezleber  vs.  Shalleross  (9  Hoiist.  1.  19  Atl.  .316)....  40 
Franklin  County  vs.  State    (24  Fla.  55,  3   So.  471,   12 

Am.   St.    Eep.    183) 150 

G. 

Gates   vs.    Neal    (23    Peck    (Mass.)    308.) 33 

Gill  vs.  Shurtlegg  (183  111.  440,  56  N.  E.  Eep,  174) 107 

Gillespie  vs.  Dion   (18  Mont.  183,  44  Pac.  Eep.  954)..  215 

Gillespie  vs.  Palmer   (20  Wis.  544) 33 

Gilroy  vs.  Appeal    (100  Pa.  St.  5) 196 

Gooding  vs.  Wilson   (Smith  El.   Case   79) 216 

Gordon  vs.   State    (52   Ala.   308) ; 227 

Greele  vs.  Pinney   (62  Conn.  478,  26  Atl.  1106) 143 

Greene,  In  re  (121  App.  Div.  693,  106  N.  Y.  Siipp.  425)  73 

Grier  vs.  Taylor  (4  MeCord  L.  (S.  C.)  206) 187 

GriflPen  vs.  Wall  (32  Ala.  149) 26 

Criffcn   vs.   Eising    (11   Metcalf   (Mass)    339) 33-34 

Griftiths,  In  re  (I  Kulp  (Pa.)  157) 37 

H. 

Harding    vs.    Eichinger    (57    Ohio    St.    371,    49    N.    E. 

306)     19 

Harris  vs.  Whitcomb  (4  Gray  333) 34 

Hartzell  vs.   Smith    (18   Pa.  Co.   Ct.   551) 143 

Harvey   vs.   Cook   County    (221   HI.   76,   77   N.   E.   Rep. 

424)    107 

Hayes  vs.  Sturges   (215  Pa.  St.  605,  64  Atl.  828) 196 

Heath  Ex  parte  (3  Hill  (N.  Y.)  42) 146-7-8 

Helme    vs.    Board    of    Election    Commissioners     (140 

Mich.    390)     137 

Hill  vs.  Boston  (193  Mass.  569) 180 

Hodgs  vs.  Jones    (43   S.  W.   41) 205 

Hodge  vs.  Linn   (100  HI.  397) 107 

Holt  vs.   People    (102   111.   App.   276) 151 

Hopper  vs.  Stack  (69  N.  J.  L.  569,  58  Atl.  Eep.  1) 75 

Horgan,  In  re  (16  E.  I.  542,  18  Atl.  279) 40 

Horning  vs.   Board  of  Canvassers   (119   Mich.  51)    (77 

N.  W.  Rep.  446) 108 

Hotcbkisa  vs.  Keck  (84  >:eb.  545) 196 


TABLE  OF  CASES  263 

Hoy   vs.   State    (81    N.    E.   509) 182 

Hughes  vs.  Hartnian    (23   Oregon   482) 216 

Hughes  vs.  Hohnan    (23   Oregon   981) 213 

Hughes  vs.  Marshall    (2    Tyrw.    134) 231 

Hudson  vs.  Conklin   (77  Kan.  764,  93  Pac.  585) 175 

I. 

Independence  Party  Nomination   (208  Pa.   St.  108)...    100 
Inhabitants   of   Windham   vs.   Inhabitants   of   Portland 

(4    Mass.    384) 40 

Innis  vs.  Bolton  (2  Idaho  407,  17  Pac.  264) 30 

J. 

Jeffries  vs.  Ankenny  (11  Ohio  372) 33 

Jenny  vs.  Alden   (79  Vt.  156) 181 

Jones  vs.   Glidewell    (53   Ark.   161) 205 

Jones  vs.  Granville  (77  N.  C.  250) 195 

Jones  vs.  State   (153  Ind.  440,  55  N.  E.  Eep.  229)  .  .  . 

107-8,  207,  209,  170 

K. 

Katz  vs.  Fitzgerald    (152  Cal.  433,  93  Pac.  Eep.  112)      77 
Kellogg  vs.  Hickman   (12  Colo.  256,  21  Pac.  Eep.  325)    147 

Kerr  vs.   Flewelling   (235  Ilh  325,  88   N.   E.   624) 115 

Kennenwig  vs.  Allegany  County   (102  Md.  110) 77-8 

Kilpatrick   vs.    Smith    (77    Va.    347) 196 

Kimbery  vs.  Morris   (87  Tex.  637) 186 

Kingery  vs.  Berry    (94  111.   515) 216 

Knox    County   vs.   Davis    (63    111.   405) 204 

Kulp  vs.  Bailet  (99  Tex.' 310,  89  S.  W.  Eep.  957) .  .107-208 

L. 

Lackey  vs.  United  States    (107   Fed.  Eep.   114) 237 

Lanier  vs.  Galatos  (13  La.  Ann.  175) 215 

Launcester  Election  Petition   (9  C.  B.  626) 205 

Lauritsen  vs.  Segard  (99  Minn.  313,  109  N.  W.  404)  .  .    182 

Laurence  vs.   Knight    (4  Phila.    (Pa.)    355) 151 

Lawson  vs.  Hays  (39  Colo.  250) 195 

Lehman  vs.  McBridge   (18  Ohio  St.  573) 147 

Lehman  vs.  Pettingell   (89  Pac.  48) 181-183 

Le  Moyno  vs.  Farwell  (Smith  El.  Cas.  411) 204, 


264  TABLE  OE  CASES 

Leonard  vs.  Conn.   (112  Pa.  St.  622) 75 

Lincoln  vs.  Hapgood   (11  Mass.  354) 33 

Liud  vs.  Scott   (87  Minn.  26) 63 

Louisiana    Cases    (Taft    El.    Cases   426) 197,  245 

Lucas  vs.  Futrall   (84  Ark.  540,  106  S.  ^\■.  IJ67) 195 

Luce  vs.  Mayhem  (13  Gray  (Mass)  83) 151 

Lunsford  vs.  Culton  (15  Ky.  Law  Kep.  504) 215 

Lyman  vs.  Martin   (2  Utah  136) 41 

Lynch  vs.  Malley  et   al.    (215   111.  574,   2   Am.  &   Eng. 

Anno.    Cases    837) 137 

Lyane  vs.  Regis  (1  P.  R.  &  B.  El.  Cases  35) 205 

M. 

Mann   vs.   Cassidy    (1   Vrewst.   11) 215 

Matter  of  Atkinson   (28  Misc.   (X.  Y.)    694,  59  N.   Y. 

Suppl.   792)    150 

Matter  of  Barber  (10  Phila.  (Pa.)  579) 151 

Matter  of  Woods  (5  Misc.  (N.  Y.)  575  26  N.  Y.  Supl. 

169)     150 

Meacham  vs.  Young  (24  Ky.  L.  R.  2141,  72  S.  W.  1094)  66 

Miller  vs.  Pennoyer  (23  Or.  364,  31  Pac.  830) 167 

Miller  vs.  Rucker    (1  Bush   (Ky.)   135) 33 

Mills  vs.  McCall   (44  111.  194) '. 33 

Miner  vs.   Olii    (159   Mass.   487) 104 

Missouri,  State  vs.  Steers  (44  Mo.  223) 151 

Montgomery  vs.  Chelf  (118  Ky.  766,  82  S.  W.  Rep.  388)  78 
Montgomery  vs.  Henrv  (144  Ala.  629,  6  Am.  Cas.  965, 

1  L.  R.  A.  N.  S.  656) 107 

Moore  vs.  Caldwell   (Freem  222) 195 

Moore  vs.  Mayfield   (47  111.  187) 169 

Mooris  vs.  Cole  Midland  Ry.  Companv   (48  Colo.  147; 

109  Pac.  430;  20  Am.  &  Eng.  ANN.  Cas.  1006)..  34 

Morris  vs.  State  (7  Blackf.  (Ind.)  606) 227 

Murdoek  vs.  Weiner   (55  111.  App.  527) 40 

Murphy  vs.  Battle  (155  111.  182,  40  N.  E.  Rep.  470)..  107 

Murphy   vs.    Bottle    (155    111.    182) 216 

Murphv  vs.  C'urrv  (137  Cal.  479) 123 

Mustard  vs.   Hoppess    (69   Ind.   324) 147 

Me. 

McAllen  vs.  Rhodes  (65  Tex.  348) 196 

McDill  vs.  Board  of  State  Canvassers   (36  Wis.  505) .  .  197 

McHani  vs.  Conned  (Tex.  App.)    (15  S.  E.  Rep.  284).  .  83 

McKay  vs.  Glen   (Hodgin's  Elec.  Cas.  751) 205 


TABLE  OF  CASES  265 

McKay  vs.  Minner  (154  Mo.  608,  55  S.  W.  866) 208 

McKinley-Citizens  Party,  In  re   (6  Pa.  Dist.  109) 146 

McKinnon  vs.  People  (110  111.  305) 115 

McMahon  vs.  Zahorik  (91  Iowa  23) 118 

Mcpherson  vs.  Blacker,  (146  U.  S.  25) 256-257 

McTammany  Voting  Machine  (23  K.  I.  630) 134 

McWilliams  vs.  Jacobs  (128  Ga.  375) 174 

N. 

Neal  vs.  Delaware  (103  U.  S.  370) 36 

Neal  vs.  Young  (25  Ky.  L.  K.  183,  72  S.  W.  1092)  ....  66 

Newark's  Case  (1  Fras.  El.  Cas.  277) 46 

Newton  vs.  Newell   (26  Minn.  529) 216 

Nichols  vs.  Minton  (196  Mass.  410,  82  N.  E.  Kep.  50).  137 

Nickols  vs.  Eegsdale  (28  Ind.  131) 211 

Norris  vs.  Handley  (Smith  El.  Cas.  73) 216 

O'Connel  vs.  Mathews   (177  Mass.  518,  59  N.  E.  Eep. 

195)     115 

Ogg  vs.  Glover  (72  Kan.  247,  83  Pae.  Eep.  1039) 107 

Olive  vs.  O  'Eilet  (Minor  (Ala.)  410) 216 

Olwell,  In  re  (59  N.  W.  1128,  165  N.  Y.  642) 51 

Orphan's    Ct.    In    re    (1    Brewst.    (Oa.)    67,    5    Phila. 

(Pa.)    102)    151 

Osgood  vs.  Bradley   (7  Maine  411) 33 

Oughton  vs.   Black    (212   Pa.   St.   1) 100-3 

Owen  vs.  Milhoan  (72  Kan.  701,  83  Pac.  Eep.  1044) ...  209 


Pacheo  vs.  Beck  (52  Cal.  3) -. 146 

Page  vs.  Allen   (58  Pa.  St.  338,  98  Am.  Dec.  272) 60 

Painter  vs.  United  States  (6  Ind.  T.  621) 174 

Parkes  vs.  Orr  (158  111.  609,  41  N.  E.  Eep.  1402)  .  .114-119 
Parwin  vs.  Winberg   (130  Ind.  561,  30  N.  E.  790  and 

15  L.  E.  A.  775) 108-167 

Pattern  vs.  Coates  (41  Ark.  Ill) 215 

Patterson  vs.  Hubbe   (65  N.  C.  119) 196 

Patterson  vs.  People  (65  111.  App.  651) 115 

Peabody    vs.    March    et    al    (75    Kan.    543,    89    Pac. 

1016)    108-208 

People  vs.  Armstrong   (116  App.  Div.  103) 183 

People  vs.  Avery    (102   Mich.   572) 84 

People  vs.  Barber   (RI.  Hun.   (N.  Y.)    198) 227 

People  vs.  Beam  (117  Div.  374,  103  N.  Y.  S.  818) 181 

Perkins  vs.  Bertrabd   (192  III.  58,  61  N.  E.  Kep.  405 


266  TABLE  OF  CASES 

85  Am.  St.  Rep.  315) 107 

People  vs.  Bingham    (82  Cal.   238) 198 

People  vs.  Board  of  Town  Canvassers  (19  N.  Y.  Supp. 

206)  144 

People  vs.  Brewer    (20   111.   474) 87 

People  Ex  rel  Breekon  vs.  Board  of  Election  Commis- 
sioners (221  ill.  9) 75-8 

People  vs.  Burns    (75    Cal.    627) 232 

People  vs.  Democratic  Gen.  Conim.    (82  App.  Div.   (N. 

Y.)    123)    67 

People  vs.  Edgar  County  Com.  (223  111.  187,  79  N.  E. 

123)     181 

People  vs.  Erie  C'ty-  (79  N.  Y.  App.  Div.  514,  80  N.  Y. 

Supp,  25)    151 

People  vs.  Essex  County    (69   Hun.    (N.  Y.)    406) 198 

People  vs.  Farley  (1  How.  Pr.  N.  B.  71) 195 

People  vs.  Hagen  (58  N.  E.  1091,  165  N.  Y.  607)....  51 

People  vs.  Hoffman   (116   111.   587) 85 

People  vs.  Eugle   (91  111.  525) 145 

People  vs.  Miller    (16   Mich.   56) 216 

People  vs.  Parkhurst   (53  N.  Y.  Supp.  598) 118 

People  vs.  Smith   (51  111.  323,  55  N.  Y.  M) 169. 

People  vs.  Sternberg    (111   Cal.   3) 223 

People  vs.  Strassheim  (240  III.  179,  88  N.  E.  Rep.  821)  81 

People  vs.  Thacker    (7  Laws  N.   Y.) 216 

People  vs.  Tisdale  (1  Dougl.  (Mich.)  59) 150 

People  vs.  Voorhis  (186  N.  Y.  263,  78  N.  E.  1001)  .180-184 

Perry  vs.  Reynolds    (53   Comm.   527) 34 

Phillips  vs.  Brynus   (39  So.  911 ) 206 

Piggott   vs.   Cascade   County    (12    Mont.    537,    31    Pac, 

5361)     '. 150 

Plimmer  vs.  Yost   (1441.  61,  33  N.  E.  191) 41 

Powell  vs.  Holman   (50  Ark.  85,  6  S.  W.  505) 147 

Pratt  vs.  Board  of  Police  (15  Utah  1,  49  Pac.  747) .. .  177 

Q- 

Quartier  vs.  Dowiat  (219  111.  326,  76  N.  E.  Rep.  371).  169 

R. 

Rawson  vs.  Abbott  (Taft  El.  Cases  338) 245 

Reed  vs.  Lamb  (6  H.  and  N.  75) 233 

Reg  vs.  Parkinson    (L.   R.  3  Q.  B.   11) 209 

Reg.  vs.  Stewart   (16  Ont.  Rep.  583) 205 

Reid,  Ex  parte  (50  Ala.  439) 187 

Rex  vs.  Cupland   (11  Md.  387) 231 


TABLE  OF  CASES  267 

Eex  vs.  Pitt  (3  Burr.  1335) 231 

Eex  vs.  Plyrapton  (2  Campb.  229,  2  Ld.  Eaymond,  1377)   231 

Eex  vs.  Pollmau  (2  Campb.  229) 231 

Eexroth  vs.  Schein  (206  111.  80,  69  N.  E.  Eep.  240)  .  107-8-112 

Eichardson  vs.  Eainey  (1  Ellsw.  El.  Cas.  233) 203 

Eiggs,  Ex  parte   (52  S.  C.  298,  29  S.  E.  645) 150 

Eizer  vs.  People  (18  Colo.  App.  49,  69  Pac.  315) 186 

Eoberts  vs.  Clavert   (98  N.  C.  580,  4  S.  E.  127) 143 

Eobinson  vs.  McCandless  (29  Ky.  L.  E.  1088,  96  S.  W. 

877)     181 

Eose  vs.  Neinnett   (E.  I.)    (56  Atl.  Eep.  185) 73 

Eouse  vs.  Thompson  (228  III.  522,  81  N.  E.  1109) 79 

S. 

Sanner  vs.  Patton  (155  111.  553,  40  N.  E.  290) 124 

Savage  vs.  Wolfe   (68  Ala.  569) 170 

Schilling,  Ex  parte,   (5rx  Crim.  App.  1897)    (42  S.  W. 

Eep.    553)     84 

Scott  vs.  State   (151  Ind.  556,  52  N.  E.  162) 174 

Schastag  vs.  Cator  (151  Cal.  600,  91  Pac.  Eep.  502)..  77 
Schuler  vs.  Hogan  (168  111.  349,  48  N.  E.  Eep.  195)  ...  107 
Schuler  vs.  Hogan  (168  111.  349,  48  N.  E.  Eep.  195)  .208-168 

Sego  vs.  Stoddard  (136  Ind.  297,  36  N.  Y.  204) 119 

Seymour  vs.  Tacoma   (6  Wash.  427) 61-84 

Siebold,  Ex  parte  (100  U.  S.  331) 85 

Simpson  vs.  Osborn   (52  Kan.  328) 123 

Sinks  vs.  Eeese,   (19  Ohio  St.  306) 216 

Slattery,  In  re  (100  N.  Y.  S.  419) 206 

Smith  vs.  Holt   (24  Kan.  773) 219 

Smith  vs.  Harris  (18  Colo.  274,  32  Pac.  Eep.  616) 215 

Smith  vs.  Askew  (48  Ark.  82) 88 

Smith  vs.  Harris  (18  Colo.  274,  32  Pac.  Eep.  616) 107 

Smith  vs.  Lawrence   (2  S.  D.  185,  49  N.  W.  7) 147-186 

Smith  vs.  Saginaw  (81  Mich.  123,  45  N.  W.  964)  ....  186 
Soper  vs.  Sibley  County  Commissioners  (46  Minn.  274) 

(46  Minn.  274,  48  N.  W.  Eep.   112) 215 

Spaulding  vs.  Mead  (CI.  &  H.  El.  Cases  157) 197 

Spencer  vs.  Board  of  Eegistration   (1  Mac  Arthur  169, 

29   AM,    Eep.    582) 26 

Stephen  vs.  People    (89  111.  337) 83-4-7 

Spragius  vs.  Houghton  (2  Scam.  (111.)  377) 43 

Spitler   vs.   Guy    (58   S.   E.   769) 182 

Stackpole  vs.  Hallabary  (16  Mont  49,  40  Pac.  80) 167 

Stallcup  vs.  Tacoma   (13  Wash.  143) 57 

State  vs.  Allen   (43  Neb.  651) 122 

State  vs.  Alexander   (107  la.  177,  77  N.  W.  841)....   196 


268 


TABLE  OF  CASES 


State  vs.  Ashley   (1  Ark.  279) 174 

State  vs.  Barton  (58  Kan.  709,  51  Pac.  Rep.  218) 219 

State  ex  rel  Birehmore  vs.  State  Board  of  Canvassers, 

(78  S.  C.  461 ) 217 

State  vs.  Bode    (55   Ohio   St.   224) 12.3 

State  vs.  Boston   (59  Ohio  St.  122) 103 

State  vs.  Burnell  (110  N.  W.  Eep.  177) 208 

State  vs.  Benton  (13  Mont.  306,  34  Pac.  301) 73 

State  vs.  Buck    (13    Neb.    273).. 3 83 

State  vs.  Brown  (38  Ohio  St.  344) 186 

State  vs.  Board   of   Elec.   Comm.    of   Marshall   County, 

(167  Ind.  276,   78  N.   E.   1016) 184 

State  vs.  Boal    (46    Mo.    528) 174 

State  vs.  Bell  (169  Ind.  61,  82  N.  E.  69) 175 

State  vs.  Bower  (8  S.  C.  400) 175 

State  vs.  Colline   (2  Nev.  351) 87 

State  vs.  Caldwell   (2  Hardesty   (Del.)   164) 223 

State  vs.  Collier    (72   Mo.    13) 205 

State  vs.  Clark  (59  Neb.  702,  82  N.  W.  8) 150 

State  vs.  Crawford    (28    Fla.    441) 197 

State  vs.  Dahl  (69  Minn.  109,  71  N.  W.  810) 174 

State  vs.  Deputy   State   Supervisors    (9   Ohio   Cir.   Ct.)   427 

State  vs.  Dustin    (5  Ore,   375) 205 

State  vs.  Daniels   (44  N.  H.  383) 232 

State  vs.  Drexel   (105  N.  W.  Eep.  174)    (Neb.) 77 

State  vs.  Donnewirth   (21  Ohio  St.  216) 144 

State  vs.  Eastman    (46  Neb.   675,  65   N.  W.   805) 145 

State  vs.  Elliott    (13  Utah  200,  44  Pac.   248) 174 

State  vs.  Elting    (29    Kan.    397) 205 

State  vs.  Frazier   (28  Neb.  435,  44  N.  W.  471) 175 

State  vs.  Franshorn  (19  Mont.  273,  48  Pac.  Rep.  1). 108-208 

State  vs.  Fiulev    (74   Mo.    App.    213) 150-39 

State  vs.  Gaff  \l29  Wis.  668,  109  N.  W.  628) 181 

State  vs.  Herreid  (105  N.  D.  16,  71  N.  W.  319) 196 

State  vs.  Johnson   (28  Ohio  Cir.  Ct.  793) 175 

State  vs.  Jefferson  County   (17  Fla.  707) 186 

State  vs.  Junkin   (Neb.)    (122  N.  W.  Eep.  475) 73 

State  vs.  Kearney    (28    Neb.    103) 196 

State  vs.  Krueger    (134    Mo.    262) 232 

State  vs.  Kendall     (87    Pac.    821) 182-3-4 

State  vs.  Lindahl    (11    N.   D.   309) 73 

State  vs.  Lieu  (9  S.  D.  297,  68  N.  W.  748) 186 

State  vs.  Lindemann  (121  Wis.  47.  Ill  N.  W.  712)..  174 
State  vs.  Mason  (45  Wash.  234,  88  Pac.  126)  .  .186-181-183 

State  vs.  Moore   (87  Minn.   308) 75 

State  vs.  McClarnon    (15   E.   T.   462) 227 

State  vs.  McDonald  (4  Harr.  (Del.)  555) 232 


TABLE  OF  CASES  269 

State  vs.  McMillab    (108  Mo.  153) 103 

State  vs.  Millar   (Okla.  1908)    (96  Pac.  Eep.  830) 107 

State  vs.  Morris  (37  Neb.  299,  55  N.  W.  Eep.  1086)  .  .  107 

State  vs.  McFadden  (46  Neb.  668,  65  N.  W.  800) 145-7 

State  vs.  McKennie   (10  N.  D.  132  N.  W.  231) .146 

State  vs.  Ninnick    (15   Iowa  124) 227 

State  vs.  Porter  (11  N.  D.  309) 73 

State  vs.  Beter  (21  Wash.  243,  57  Pac.  Eep.  814) 115 

State  vs.  Perkins   (42  Vt.  399) 227 

State  vs.  Pearson    (97   N.   C.  434) 227 

State  vs.  Eice    (66  S.  C.  1) 195 

State  vs.  Eeynolds  (190  Mo.  578,  89  S.  W.  877) 187 

State  vs.  Scott    (108  N.   W,  Eep.  828   Minn.) 77 

State  vs.  Samuelson   (131  Wis.  499,  111  N.  W.  712)..  174 

State  vs.  Stein  (13  Neb.  529)  14  N.  W.  481) 174 

State  vs.  St.  Louis  Public  Schools   (134  Mo.  296) 186 

State  vs.  Shropshire    (4  Neb.  411) 186 

State  vs.  Shepherd    (42   Kan.   360) 60 

State  vs.  Saxon    (30   Fla.   668)    (12   So.   Eep.  218,  18 

L.  E.  A.  721,  32  Am.  St.  Eep.  46) 107 

State  vs.  Stuckey    (78   Mo.   App.   533) 146-7 

State  vs.  Trigg    (72   Mo.   365) 146 

State  vs.  Tanzey  (49  Ohio  St.  656,  32  N.  E.  759)  .  .150-186 
State  vs.  Willett  (127  Tenn.  334,  97  S.  W.  299) ...  .182-3 

State  vs!  Withrow   (154  Mo.  397,  55  S.  W.  460) 195 

State  vs.  Whitney  (12  Wash.  420,  41  Pac.  Eep.  189)..  219 

State  vs.  Winter  (141  Ind.  177) 87 

State  ex  rel  Grain  vs.  Acker    (142   Wis.   394,   125   N. 

W.    952)     115 

Stearns  vs.  Wyoming    (53   Ohio    St.   352) 198 

Steele  vs.  Calhoun    (61  Mass.  556) 89 

Steele  vs.  Martin    (6   Kan.    430) 215 

Stimpson  vs.  Breed   (Mass.  El.  Cas.) 260 

Stine  vs.  Berry  (27  S.  W.  Eep.  809,  16  Ky.  Law  Eep. 

279)     169 

Strong,  In  re  (20  Pick.  Mass.  484) 151 

Stone  vs.  Smith   (159  Mass.  403,  34  N.  E.  521) 38 

Sulston  vs.  Norton  (3  Burr.  1235) 231 

Swafford  vs.  Templeton   (186  N.  S.  487) 33 

Sweeney  vs.  Hjul  (23  Nev.  409,  48  Pac.  Eep.  1086)..  115 

T. 

Taft  vs.  Adams   (3  *ray   (Mass.)    126) 142 

Talkington   vs.   Turner    (71   111.   234) 216 

Tanner  vs.  Deen   (Ga.)    (33  S.  E.  832) 168 

Taylor  vs.  Bleakley   (55  Can.  1) 103 


270  TABLE  OF  CASES 

Taylor  vs.  Burke   (91  Pac,  814) 183 

Tebbe  vs.  Smith  (108  Cal.  101,  41  Pac.  K^p.  454) 119 

Territory  vs.  Pyle   (1  Oregon  140) 216 

Territory  ex  rel  Willis  vs.  Kaneali  (17  Hawaii  243)  107-208 
Thomas,  In  re   (128  App.  Div.  3:J0,  132,  N.  Y.  Supp. 

664)     73 

Tillson  vs.  Ford   (53  Cal.  701) 84 

Todd  vs.  Elec.  Comm.   (104  Mich.  481) 103-121 

Toncray  vs.  Budge  (14  Idaho  621,  95  Pac.  26) 173 

Torry  vs.  Harris  (85  Ky.  453) 87 

Trench  vs.  Nolan  (6  Ir.  Eep.  C.  L.  464) 205 

Trumball   vs.   Board   of   Canvassers,    (Mich.)     (103    N. 

W.   993)    139 

Tunks  vs.  Vincent    (106   Ky.   829,   S.   W.   622,   21   Ky. 

L.    Eep.   475)     146 

U. 

United  States  vs.  Amsden   (6  Fed.  Eep.  819) 237 

United  States  vs.  Badnielli  (37  Fed.  Eep.  L38) 142-233 

United  States  vs.  Brewer    (139    U.    S.    278) 142 

United  States  vs.  Dwyer    (56   Fed.   Eep.   464) 232 

United  States  vs.  Moloy   (31  Fed.  Eep.  19) 224 

United  States  vs.  Norrel    (Whart.    St.    Tr.    189) 231 

United  States  vs.  O'Connor   (31  Fed.  Eep.  449) 224 

United  States  vs.  Eeese,    (92   U.   S.  214) 36-40 

United  States  Standard  Voting  Machine  Company   vs. 

Hobson,  (132  Iowa  38,  109  N.  W.  458) ..  .139-187-192 


Vallier  vs.  Brakke  (7  S.  D.  343,  64  N.  W.  180) 119 

Vaughan 's  Case  (4  Burr.  2494) 231 

Vette  vs.  Byington  (132  la.  487,  109  N.  W.  1073) 195 

Voorhees  vs.  Arnold  (1083  la.  77,  78  N.  W.  Eep.  795).  115 

Voting  Machines,  In  re   (19  E.  I.  729) 136 

W. 

Wagner  vs.  State   (63  Ind.  250) 233 

Wallace  vs.  Lansdon   (Idaho)    (97  Pac.  Eep.  396) 73 

Wallace  vs.   Anderson    (5   Wheaton   291) 175 

Walsh  vs.   People    (65  111.  58) 231 

Walton  vs.   Beveling    (61   111.   201) 193 

Washburn  vs.   Voorhis,    (2   Bart.   31   Cas.   54) 204 

Webb  vs.  Smith   (4  Bing.  373) 231 


TABLE  OF  CASES  271 

Whaley  vs.  Thompson   (15  Tex.  Ct.  Eep.  207,  93  S.  W. 

212)    204-5 

Whittan  vs.  Zahorik   (91  Iowa  23) 119 

Wiley  vs.  Sinkler  (171  U.  S.  58) 33-34 

Williams   Ex   jjarte    (35   Tex.   Ct.  Eep.   207,   93   S.   W. 

212)    204-5 

Williamson  vs.  Lowe  (527  111.  235) 169 

Williams  vs.  Porter    (114  111.  628) 88 

Winton  Nominations,  Ee  (2  Lock  Lef.  N.  (Pa.)  13)..  219 
Wisconsin,    State   vs.    Board    of    State    Canvassers    (36 

Wis.    498)     151 

Wolf  vs.  State  (59  Ark.  297) 233 

Wyman  vs.  Lemon  (51  Cal.  273) 119 

Y. 

Yoiing  vs.  Beckman  (24  L.  E.  2134,  77  S.  W.  1092).. 66-67 

Z. 

Zaeharias,  In  re  (30  Pa.  Co.  Ct.  656) 142 

Zeis  vs.  Passwater  (142  Ind.  375,  41  N.  E.  Eep.  796)  .  .    119 


INDEX 


Apportionment  of  Members  of  Congress 239 

Assemblies. 

Teutonic 15 

Early  Popular    15 

Athenian  Ecclesia   15 

Australian  Ballot  System. 

History  of  23-91 

Form  of   94 

Constitutionality  of  100-3 

B. 

Ballots. 

Introduction  of   21 

Introduction  of  in  England 22 

Form  of  Illinois  Ballot 99 

Form  of  Massachusetts  Ballot 95 

Australian  Ballot  System 91 

Effect   of  Irregularities   in  Preparing   Official   Ballot 

Upon  the  Validity  of  Votes  Cast 104 

Form   of   Cross   on 108 

Distinguishing  ]\larks  on 115 

Number  of  Times  Name  of  Candidate  May  Appear  on  120 

Writing  of  Additional  Names  on 123 

Betting  on  Elections 233 

Bribery    227 

What  Will  Constitute 228 

C. 

Calling  Elections   82 

Canvassers  of  Election 148 

Certiorari    186 

Use  of,  in  Election  Contests 186 

City  Political  Committee 65 

Conduct  of  Elections 82 

Congress,  Apportionment  of  Members  of 239 

273 


274  INDEX 

Congressional  Elections,  Contested 242 

Constitutional  Provisions  as  to  Registration 56 

Constitutionality    of  Australian  Ballot  System 100-3 

Constitutionality  of  Laws  Providing  for  Use  of  Voting 

Machines   134 

Constitutionality  of  Primary  Election  Laws 75-77 

Contested  Congressional  Elections 242 

Contested  Delegates,  Eight  to  Vote 69 

Contests  Before  Legislative  Bodies 196 

Control  of  Courts  Over  Political  Conventions 71 

Counting  Votes   140 

Statutory  Provisions  as  to 141 

By  Candidates  142 

County  Political  Committees 64 

Crimes  Eelating  to  Elections 220 

Federal  Statutes  as  to 234 

Cross  on  Ballot,  Form  of 108 

Curia  Eegis   17 

D. 

Delegates  to  Political  Conventions 68 

Election  of 68 

Deprivation  of  the  Eight  to  Vote 30 

Eemedies  in  Cases  of , 30 

Development    of    Eepresentative    Government    in    Eng- 
land   16-19 

Distinguishing  Marks  on  Ballot 115 

E. 

Early  Methods  of  Electing  Members  of  Parliament...      20 

Early  Popular  Assemblies 15 

Effect  of  Irregularity  or  Fraud  in  Nomination  of  Can- 
didates Upon  the  Validity  of  Election 206 

Elections. 

Popular  Elections  Among  Anglo-Saxons 16 

Conduct  of   .' 82 

Officers  of 84 

Time  of  Holding 86 

Place  of  Holding 88 

Canvassers  of 148 

Use  of  Certiorari  in  Contesting 186 

Effect   of   Irregularity   or   Fraud   in   Nomination   of 

Candidate  Upon  the  Validity  of 206 

Pleading  and  Evidence  in  Contests  of 209 

Waiver  of  Eight  to  Contest  Legality  of  by  Partici- 
pating Therein   216 


INDEX  275 

Crimes  Eelating  to 220 

Betting  on   223 

Contested  Congressional   Elections 242 

Presidential    245 

Election  Contests,  Pleading  and  Evidence  in 209 

Grounds  for  198 

Provisions  of  Illinois  Statutes  as  to 158-166 

Election  Day,  Selling  of  Liquor  on 233 

Election  of  Federal  Officers 238 

Elections,  Nature  of  Proceedings  to  Contest 152 

Election  Officers 84 

Election  Officers,  Offenses  by 231 

Election  of  President  by  Hoi^e  of  Representatives. . .  .  254 

Evidence  in  Election  Contests 209 

F. 

Federal  Elections 238 

Federal  Statutes  as  to  Crimes  Eelatinsr  to  Elections.  . .  .  234 

Federal  Officers,  Election  of '^. 238 

Feudal  System  15 

Form  of  Australian  Ballot 94 

Of  Massachusetts  Ballot 95 

Of  Illinois  Ballot 99 

Form  of  Cross  on  Ballot 108 

Fraud,  Effect  of,  in  Nomination  of  Candidate  Upon  the 

Validity  of  Election 206 

Fraud  in  Registration 220 

General  Characteristics  of  Ballots 93 

H. 

History  of  Australian  Ballot  System 91 

History  of  Election  Laws  15 

I. 

Illinois  Ballot,  Form  of 99 

Injunctions  ^ 188 

Use  of,  in  Election  Contests 188 

In  Election  Cases  Affecting  Property  Rights 191 

Illegal  Voting 224 

What   Will  Constitute 224 

Intimidation  of  Voters 233 

Introduction  of  Ballot 21 

Irregularity,    Effect    of,    in    Nomination    of   Candidate 

Upon  the  Validity  of  Election 206 


276  INDEX 


Legality  of  Election;   Waiver  of  Eight  to  Contest  by 

Participating  Therein 216 

Legislative  Bodies,  Contests  Before 193 

M. 

Mandamus    174 

As  an  Auxiliary  Proceedings 174 

Scope  of  in  Election  Contests 174 

Eight  of  Private  Persons  to  Enforce  Public  Eight  or 

Duty  Eelative  to   Elections  by 184 

Majority  of  Delegates,  Eights  of 72 

Massachusetts,  Adoption  of  Australian  Ballot  by 92 

Form  of  Ballot 95 

McTammany  Voting  Machine 138 

Members  of  Congress,  Apportionment  of 239 

Qualifications  of  Voters  for 28 

Members  of  Parliament,  Early  Methods  of  Electing. .  .  20 

Myers  Voting  Machine 133 

N. 

National  Committees    64 

National  Conventions    64-68 

Nature  of  Proceedings  to  Contest  ElcL'tions lo2 

Number  of  Times  Name  of  Candidate  May  Appear  on 

Ballot    120 

0. 

Offenses  by  Election  Officers 231 

Officers  of  Election 84 

Officials   of   Eegistrations 62 

P. 

Parliament  of  Simon  de  Montfort 18 

Partial   Suffrage    26 

Party  Organization 63 

Party  Names 63 

Petition  for  Eecount 143 

Place  of  Holding  Elections 88 

Pleading  in  Election  Contests 209 

Political  Committees 64 

Authority  of 66 


INDEX  2Tl 

Political  Conventions   67 

Control  of  Courts  Over 71 

Political  Parties 63 

Political  Platforms 70 

Popular  Elections  Among  Anglo-Saxons 16 

Ee-establishment  of 16 

Power  of  State  Legislatures  Over  Registration 57 

Primary  Election  Laws 74 

Eight  of  Legislature  to  Pass 74 

Constitutionality  of  75-77 

Unconstitutionality   of    78-81 

President,  Election  of,  by  House  of  Representatives.  .  .  254 

Presidential  Elections   245 

Presidential  Electors   27 

How  Elected    27 

Prohibition,  Use  of  in  Election  Contests 187 

Q- 

Qualifications  of  Voters,   in  General 35 

Age  Qualifications 86 

Educational  Qualifications 37 

Religious  Qualifications   38 

Property  Qualifications    39 

Sex  Qualifications   40 

Citizenship  Qualifications 42 

Residence  Qualifications 43 

Special  Disqualifications 51 

Qualifications  of  Voters  for  Members  of  Congress 28 

Quo  Warranto    170 

Scope  of  in  Election  Contests 170 

E. 

Recount,  Petition  for 143 

Ee-establishment  of  Popular  Elections 16 

Eegistration,  Constitutional  Provisions  as  to 56 

Power  of  State  Legislatures  Over 57 

Officials  of   62 

General  Application  of  Laws  of 60 

Fraud  in 220 

Eegistration  Laws,  General  Application  of 60 

Eepresentative   Government,   Development    of,   in    Eng- 
land     16-19 

Returns    1*4 

How  Authenticated 145 

Method  of  Forwarding 145 


278  INDEX 

Making  of,  a   ^linisterial  Act 145 

Rhines   Voting   Machine    134 

Roman    Legislative    Assemblies 19 

Roman  Republic,  Cause  of  Fall  of 19 

Right  of  Contesting  Delegates  to  Vote 69 

Right   of   Contestant    for    Office   to    Enjoin   Incumbent 
from   Performing  Public   Duties  Pending   Election 

Contest    193 

Right  to  Vote    25 

How    Determined     25-27 

Deprivation  of 30 

Right   of  Private  Persons  to  Enforce  Public  Right   or 

Duty  Relative  to  Elections 184 

Rights  of  Majority  of  Delegates 72 

S. 

Selling  Liquor   on   Election   Day 233 

Senate,  Vacancies  in 242 

Simon  de  Montfort,  Parliament   of 18 

Split   Ballot 119 

State    Central    Committees 65 

Statutory  Provisions  as  to  Counting  Votes 141 

Straight   Ballots    119 

Suffrage     Partial ^6 

T. 

Tutonic    Assemblies 15 

Time  of   Holding  Elections 86 

Town  Political  Committees 65 

Twelfth  Amendment,  Causes  for  Adoption  of 249 

U. 

Unconstitutionality  of  Primary  Election  Laws 78-81 

V. 

Vacancies  in  Senate 242 

Varieties   of   Voting   Machines 133 

Viva   Voce   Voting 21 

Voting     89 

Vote,   Validity    of,    as   Depending   Upon    the   Place   of 

Mark  for  Candidate 112 

Voter  Entitled  to  Secrecy 89 

Entitled   to   Assistance    90 

Intimidation  of  35 


INDEX.  279 

Votes,   Counting  of 140 

Statutory  Provisions  as  to 141 

Validity   of  as  Depending  Upon  the  Place  of  Mark 

for   Candidate 11:2 

Voting  Machines 133 

Constitutionality  of  Laws  Providing  for  Use  of....  134 

Varieties  of 133 

W. 

Waiver  of  Eight  to  Contest  the  Legality  cf  an  Election 

by  Participating   Therein 216 

Ward  Political  Committees 65 

Writing  Additional  Names  on  Ballot 123 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  758  365 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


DEC   9  '^80 


31 


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